POLS Chapter 10 NOtes- Civil Liberties
POLS Chapter 10 NOtes- Civil Liberties POLS 1336
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This 11 page Class Notes was uploaded by Kayra Reyes on Wednesday September 14, 2016. The Class Notes belongs to POLS 1336 at University of Houston taught by Sharon M Davis in Summer 2015. Since its upload, it has received 17 views. For similar materials see US and Texas Constitution and Politics in Political Science at University of Houston.
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Date Created: 09/14/16
Chapter 10 from “University of Houston: American Democracy Now” by Brigid Harrison, Jean Harris, and Michelle Deardorff CIVIL LIBERTIES IN THE AMERICAN SYSTEM Pg 251. Civil Liberties: individual rights that are protected from government interference, they allow us to behave and speak out in accordance to our personal beliefs -The concern for civil liberties formed the basis for the creation of the USA, colonists who wanted to be independent from a king who ignored their civil liberties rebelled and made the US - In rebellion to the king, the colonists created a government that would prioritize fundamental rights which would continue to be a staple American belief Pg 252. Ex: How the Bill of Rights Limits the Government: st 1 Amendment: “Congress cannot make any law establishing a religion or abridging the freedom of religious exercise, speech, assembly, or petition” 2 , 3 , and 4 Amendments: The executive branch cannot impede people’s right to bear arms, deny the keeping of soldiers in their home, or deny the searching of their home without a warrant -As a democracy, people need their rights to be protected, otherwise they can’t fully engage in political community Due Process: “legal safeguards that prevent the government from arbitrarily depriving people of life, liberty, or property without adhering to strict legal procedures” Pg 253. -The Bill of Rights came to be in result of the fear of a government that would limit the people’s freedoms, recreating the monarchy they once lived under Ex: How the Original Constitution Limits the Government: Article I, Sec. 9: habeas corpus: requires that someone being detained be told why they are detained; bill of attainder: prohibits that people be declared guilty without a trial; ex post facto laws: prohibits that people be accused of crimes that weren’t illegal at the time they committed them Article III: guaranteed a trial in the state where the crime was committed Pg 254. –The Bill of Rights is so vague that people argue on how to interpret the amendments -Framers of the Bill of Rights intended to limit the power of the national government, not the state governments. This was because at the time, state constitutions already had laws established to prevent government abuse of its people Barron vs. Baltimore: Barron sued the city of Baltimore for using his property without justful payment which was banned by the Fifth Amendment, however, the court decided that the Bill of Rights only applied to the federal not the state governments Pg 255. The Fourteenth Amendment has been interpreted to extend civil rights and liberties to apply to state governments The Supreme Court rejected the establishment of Total Incorporation: applying ALL the protections in the Bill of Rights to the states Selective Incorporation: only certain specifically analyzed cases would apply to the states rather than all (since due process already seemed to apply the protection of unalienable rights to the states) Gitlow vs. New York: first case in which the Bill of Rights was applied to state governments, the Court decided that freedom of speech is one of the most crucial rights protected by the due process clause of the Fourteenth Amendment from being abused by the states Near vs. Minnesota: “the Court added freedom of the press, and in 1937 it added freedom of assembly to the list of incorporated protections” Palko vs. Connecticut: established a set of guidelines that would help define fundamental rights in incorporation cases, these guidelines are still frequently used today, must be rooted in American tradition ND Pg 256. CONTROVERSY OVER 2 AMENDMENT, RIGHT TO BEAR ARMS How do we negotiate between safety and individual liberties? nd -previously the 2 amendment was interpreted to mean that the militia could support the government in maintaining order Pg 257. District of Columbia vs. Heller: 2008 case in which the court decided that the 2 nd amendment meant that an individual had the right to possess fire arms for the purpose of self-defense McDonald vs. Chicago: 2010 case which declared that states had to respect constitutional law that allows individuals to carry concealed hand guns Different laws adopted by different states: Stand Your Ground: laws that reserves a person's right to stand his or her ground against an imminent threat, with no duty to retreat, as long as the person has a right to be where he or she is Castle Doctrine: allows a person to stand their ground in their home or an office Duty to Retreat: does not allow people to use deadly force in self-defense if it is possible to safely avoid the risk of harm or death by running away or by other means -Some groups argue banning guns would end gun violence, while others argue that having “good” citizens with guns will stop the “bad” guys with guns Pg 258. FIRST AMENDMENT FREEDOMS ENDORSING CIVIC DISCOURSE Marketplace of Ideas: the sharing of contrasting opinions -We only find solutions when we challenge ideas, freedom of press allows us to practice discussing different topics Pg 259. Incidents Where the Government Tries to 1 Amendment Rights: Alien and Sedition Acts (1798): “Sedition Act” criminalized all forms of speech or writing against the government, “Alien Enemies Act” gave the president the power to deport immigrants suspected of threatening the nation's security or to imprison them indefinitely -President Abraham Lincoln tried to dissuade protestors by trying their cases in military court without due process. Lincoln also suspended the writ of habeus corpus: the constitutional right to protects an individual in custody from being held without the right to be heard in a court of law -After 9/11, President Bush decided that suspect terrorists or war combatants should be denied the civil right to a fair and speedy trial -The Supreme Court’s decisions in free speech cases is influenced by whether or not there is a suspected threat from the public or to the public Clear and Present Danger Test: the government can only shut down any speech that may cause harm or danger that the government has the responsibility to prevent -Ex 1: During World War I, Charles Schenk passed out pamphlets urging citizens to resist the draft, this type of speech was shut down for impeding the government’s power to carry out a draft or war or raise up an army. -Ex 2: A group of individuals released private information of the government online, this speech was deemed as a form of terrorism as the information released was kept secret in protection of the safety and better good of the nation After the Clear and Present Danger Test, another test was created, one that is more restricting to speech called the Bad Tendency Test: any speech that could possibly arouse destruction, disturbance, or violence could be silenced; Pg 261. Prioritizing safety sacrificing individual speech Cold War: not a literal war, but a competition of ideals and developments between the United States and the Soviet Union Smith Act of 1940: banned the teaching of using violence or force as a way to overthrow the government Important Figures Teaching Communism and Socialism: Philosophers: Karl Marx and Friedrich Engels Leaders: Vladimir Lenin and Josef Stalin -Though these teachings and readings did not endorse violence, the government believed they did pose some sort of harm, aka Charles Schenk dilemma -After the Cold War, these concerns about dangerous speech faded allowing the US to go back to interpreting the First Amendment with a broader interpretation Brandenburg vs. Ohio: Court decided that free speech should receive more importance than the government’s concern about safety and threatening speech Brandenburg Test (Imminent Lawless Action Test/Incitement Test): made the clear and present test stricter, required that dangerous speech be proven to be highly likely to cause imminent or immediate danger in order to be silenced Pg 262. FREEDOM OF SPEECH -Change can’t happen if we can’t share information, opinions, or demand change Pure speech: “just words” Symbolic Speech: nonverbal speech, actions that hold meaning US vs. O’Brien: Vietnam War protesters burn draft cards which violated the Selective Service Act, decided that this act was unconstitutional as it infringed upon the government’s right to practice its power to raise up an army Tinker vs. Des Moines: school in Des Moines argued that students wearing black armbands to school to protest the war was disruptful to their education, however this could not be proven and therefore this type of speech was protected by the constitution Texas vs. Johnson: a man burned the American flag in protest against Reagan’s policies while in office, this speech was protected as political speech -Congress purposely passed the Flag Protection Act to attempt to undo the T vs. J case US vs. Eichman: struck down the Flag Protection Act Pg 263. –From 1995 to 2006, Congress has tried to amend the constitution to ban flag burning, however, despite receiving 2/3 vote from the House of Reps., the Senate never provided enough votes to pass the amendment UNPROTECTED SPEECH -While political speech tends to be protected always, other forms of speech can be limited Commercial Speech: advertising statements these may be limited if they surpass their goal or message Citizens United vs. Federal Elections Committee: declared that banning the act of spending money on political action limited political speech which is unconstitutional -aka, money=speech, and if people want to use their money to get a say in politics, they have that right Libel: “written statements” Slander: “verbal statements” Libel and Slander, both would be false statements used to damage another’s reputation: This would be illegal if 1. The statement is given publicly, like on TV 2. The information given is false 3. It can be proven that the accused intentionally falsified information with the purpose of making its target’s public image suffer Obscenity: form of unprotected speech, offensive speech Miller vs. California: court ruled that forms of media (books, movies, etc.)are obscene if they: 1. The average person finds that the media arouses sexual desire 2. The work clearly describes sexual behaviors that are offensive or illegal 3. “the work taken as a whole lacks serious literary, artistic, political, or scientific value” Pg 264. Fighting Words: banned form of speech, words that cause another harm or create public disturbance Chaplinsky vs. New Hampshire: Chaplinsky was accused of using offensive language towards a police officer in New Hampshire where it is illegal to use offensive language toward another person publicly Virginia vs. Black: court decision that said that cross burnings could be banned when they are done to threaten or silence a certain groupbut not ALL cross burning are trying to silence someone’s opinion Pg 265. FREEDOM OF ASSEMBLY (AND REDRESS OF GRIENVANCES) -We have freedom of speech but it comes with restrictions Content neutral time, place and manner restrictions: restrictions don’t concern what the topic of discussion but how, when and where it takes place Freedom of Press -Freedom of Press is important to democracy as it supports the flow of ideas and keeps te government accountable for its actions Principles that Govern Freedom of Press: 1. No government interaction in Prior Restraint: Censorship Near vs. Minnesota: court decided that censorship was banned except in cases where national security or obscenity might be a concern New York Times vs. US (1971): government attempted to ban publications about the US’ historical interaction with Vietnam, however the court decided these publications were fair and necessary for discussions concerning the topic FREEDOM OF RELIGION, PRIVACY, AND CRIMINAL DUE PROCESS Pg 267. Freedom of Religion The religion clause in the 1 Amendment has two purposes: 1. To ensure the government does not endorse one religious establishment over another Establishment Clause 2. To ensure that no one’s freedom of religion is infringed upon Free Exercise Clause The Establishment Clause -Doesn’t give much insight as to the church and state relationship -Does this clause mean the government shouldn’t show favorites between religious establishments or that the government should not support any kind of religion? 3 interpretations for this clause: 1. Separationism: clear separation between church and state with no connection to any religion 2. Neutrality: That government be able to support religious institutions but not be able to favor any, must always remain neutral 3. Accomodationism: allows the government to support religious establishments as long as they don’t grow to be powerful or a state religion Pg 268. Ex: A case in New Jersey where a religious school needed government funding to be able to pay for school buses to take kids to school, this was seen as necessary so children could attend school and keep it functioning rather than seeing it as the government favoring religious schools Lemon vs. Kurtzman: State program was using cigarette tax to reimburse religious schools for their teachers’ salaries and textbooks, this was found to show that the government was engaging in religious activity thus establishing the Lemon Test: Does the state program have a secular, as opposed to a religious, purpose? Does it have as its principal effect the advancement of religion? Does the program create an excessive entanglement between church and state? In an Ohio case, the government gave vouchers to parents for private schools, which tend to be religious. With these vouchers, parents could place their children in a (typically religious) private school at a lower cost. The court found that the government was not excessively entangling in religious affairs as: -the vouchers endorsed the idea of private school versus the Cleveland public school system, not necessarily religious schools versus secular schools -the vouchers were given out based on financial need Pg 269. Court’s interpretation of cases: If related to government giving out money to those in financial need judged using Accomodationist ideal If related to prayer or religious curriculum judges using Separationist ideal Engel vs. Vitale: school was endorsing organized prayer, however this had a purely religious purpose with no educational reasoning, thus inappropriate -only student-organized prayer is acceptable -New concern, schools teaching intelligent design Intelligent Design: the idea that things (like the world and humanity) were created on purpose through intelligence rather than by natural selection or by “chance” Creationism: idea directly linked to Biblical beliefs about how the world was created -some believe intelligent design is not the same as creationism, claiming intelligent design is a scientific theory and should be able to be taught alongside evolution -others believe that just because intelligent design doesn’t endorse the Christian god that it shouldn’t be counted as creationism Pg 270. THE FREE EXERCISE CLAUSE -bars the government from creating laws that would prohibit the free practice of religion Free Exercise Clause cases would include smaller institutions or acts of religion like Jehovah’s Witnesses, or refusing to salute the flag Important Notes: -The government can’t control religious beliefs but CAN monitor religious actions Ex: An individual may reject a blood transfusion due to their religious beliefs, BUT they can’t reject it for their children if it would be lifesaving -Court has differentiated between laws that neutrally target ALL religions versus laws that only target one specific religion Employment Division, Department of Human Resources vs. Smith (1990): “the Court allowed the state of Oregon to deny unemployment benefits to two substance-abuse counselors who were fired from their jobs after using peyote as part of their religious practice” *note: peyote is a drug used in religious ceremonies -refused to give benefits to those involved in illegal activity Pg 271. – Choosing your own religion and practicing it is free but religious actions that include actions that are illegal and contradict neutral laws are prohibited THE RIGHT TO PRIVACY: the freedom to make your own choices and be left alone without someone or the government meddling in your personal life -Its controversial because it affects concerns like abortion, euthanasia, and sexual orientation, however, right to privacy isn’t mentioned in the Constitution Griswold vs. Connecticut: state of Connecticut was infringing upon married couples’ right to use birth control which was seen as inappropriate as it is a private concern for the couple a combination of amendments make up the “constitutional” right to privacy Supreme Court ruled that the freedom of association comes in two forms: 1. Intimate associations: private relationships 2. Expressive associations: relationships with others, in groups Applying the Right to Privacy Roe vs. Wade: first abortion case fighting for woman’s right to abortion, or body decision privacy Pg 273. –Physician supported suicide, euthanasia, is legal if the person is conscious of their decision, however, there’s a concern as to a situation in which a person is not conscious and their loved one is set to make the decision to end life support Lawrence vs. Texas: a gay couple was found having sexual relations in their home and brought to court for illegal behavior, court ruling decided that sexual behavior is a private matter and constitutional right -However, states are still allowed to regulate sexual behavior, for example, prostitution, child abuse, and public sex regulated because they do not take place in one’s home and may not be consensual Rights Linked to Privacy: -Search and Seizure -Free Speech -Self-Incrimination PRIVACY IN SOCIAL MEDIA Concern: People’s information is so easily accessible online that it is no longer private, the NSA already monitors phone calls, emails, etc. The problem is the NSA might be working with social media sites to gain even further access to information CRIMINAL DUE PROCESS: 4 , 5 , 6 , 8 TH TH AMEDMENTS -Rights of individuals in criminal cases is greatly emphasized in the Constitution as colonists feared the British government’s abuse of criminal law Pg 274. Four amendments together= Criminal Due Process Rights: “establish the guidelines that the government must follow in investigating, bringing to trial, and punishing individuals who violate criminal law” 4 Amendment: Search and Seizure -requires that police have a warrant in order to search someone’s body or property Exclusionary Rule: prohibits the use of evidence found illegally to accuse individuals Mapp vs. Ohio: case in which a woman accused of illegal business had a police officer search her home without a warrant and despite finding evidence to support the case, it th could not be used as it violated the 4 amendment -A warrantless search can only be acceptable when searching something that an individual does not have privacy rights to (like a work computer, not owned by the individual or something one has thrown in the trash) Pg 275. United States vs. Jones: a GPS tracker was placed in a suspect’s car without a warrant, thus the information found was not usable legally 5 AND 6 AMENDMENTS: RIGHT TO A FAIR TRIAL AND COUNSEL -amendments that protect the defendants during the legal procedures of a case Double Jeopardy: 5 amendment, a person cannot be tried for the same crime twice and they do not have to testify against themselves -the 6 amendment gives one the right to a speedy and fair trial Miranda Rights: a police warning given to an individual before an interrogation to make them aware of their right to remain silent Miranda vs. Arizona: a man was arrested but not read his rights, there were rights he was not aware of until after being interrogated, thus once making officials aware of this, made the Court ensure that rights be read to all individuals in police custody Pg 276. Gideon vs. Wright: “the justices interpreted the right to counsel to mean that the government must provide lawyers to individuals who are too poor to hire their own” 8 AMENDMENT: CRUEL AND UNUSUAL PUNISHMENT Furman vs. Georgia: case in which the Court suspended death penalty as a form of capital punishment th -However, the 8 amendment has also been interpreted to mean that the death penalty must be performed in a humane manner *Note: some studies have found that lethal injections don’t actually Baze vs. Rees: first time a form of execution was reviewed in the Court AFTER 9/11 Concern: Terrorist threats could be hiding anywhere and to protect citizens, the government wants to invade people’s privacy by monitoring their means of communication in case of any threats found through communication sources INFRINGING UPON FREEDOM OF SPEECH AND ASSEMBLY -“Agencies must go before a designated court, the Foreign Intelligence Surveillance Act Court, to justify a secret search” -Reports have found that the FBI has not only monitored terrorist threats but peaceful protesters as well which fall nowhere near the exception to secret searches Pg 278. INFRINGING UPON DUE PROCESS USA Patriot Act: passed after 9/11, allows the FBI and other official groups to secretly monitor individuals deemed to be a possible threat to national safety Concern: calls and messages may be monitored for more than just terrorist threats Pg 279. Detainee Treatment Act: band cruel treatment on detainees under US custody, yet, torture has its exceptions (ex: waterboarding is not included) Rendition: the transfer of individuals under custody to be imprisoned or interrogated in another country -This serves as a loophole allowing the torture and unfair trial of an individual just because they are not on US soil Drones: Technological devices used to target specific areas and either spy on them or attack problem is they have killed hundreds to thousands of innocent people abroad when supposedly targeting terrorists
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