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Date Created: 07/15/14
Chapter 5 Civil Liberties Civil liberties guarantee citizens of the United States their quotfreedom to use their rights which cannot be restricted by the government However the Constitution written over 200 years ago was written vaguely with the Founding Fathers knowledge that change in society is inevitable The elasticity of the Bill of Rights especially has posed many questions that have been subject of the analysis of the Supreme Court Ultimately the decisions of the nine judges are absolute and sometimes require added amendments and clauses to the Constitution to clarify More questions were raised about differing national liberties and state liberties It was not until the Incorporation Doctrine that lower governments were required to instill the most of the same rights Again though the Judiciary is the ultimate decision maker of which protections are Fundamental Freedoms essential liberties that are incorporated into state rights Simply stated the Bill of Rights are Freedom of religion speech press assembly and petition The Right to Bear and Keep Arms The government cannot force private homes to quarter soldiers Protection against unreasonable searches and seizures Protection against sef incrimination and double jeopardy Due process requirements and the Right to Counsel 7 The right to a jury trial in civil cases 8 Protection against cruel and unusual punishment 9 Rights of people and the states is not limited to what is in the Bill of Rights 10 All power that the national government does not hold is a power of the states or people 9 S b 9 P 0 The Bill of Rights First 10 Amendments of the US Constitution o The Bill of Rights was originally an unpopular idea of the Anti Federaists I Proposed by George Mason in 1789 I Ratified in 1791 o Barron v Baltimore 1833 the Supreme Court ruled that the Bill of Rights limited only the actions of the federal government and not the actions of the states 0 14 Amendment o Equal protection clause o Due process clause contained in the 5quot and 14 Amendments guarantees individuals various rights liberties and protections from the government in judicial proceedings I Substantive due process Supreme Court interpretation of the due process clause that defends individuals from quotarbitrary or unjust laws I Incorporation doctrine incorporated the due process clause into state governments o Selective incorporation quotFundamental freedoms of the Bill of Rights were incorporated at the state level 0 Tension between Federal Government and State government o Gitlow v New York The state of New York convicted a man for seditious speech I Was this a violation of his First Amendment right I Incorporated the free speech clause in the First Amendment o Near v Minnesota Minnesota39s state law violated the First Amendment39s freedom of the press 0 First Amendment Freedom of Religion o Jefferson strongly believed in the separation of church and state and incorporated it into the Constitution 0 Establishment Clause the national government cannot establish a national religion Engel v Vitale reciting prayer in public classrooms was ruled unconstitutional Evverson v Board assistance for parochial school busing is constitutional Allegheny County v ACLU unconstitutional to have religious displays on government property Epperson v Arkansas unconstitutional to ban the teaching of evolution Lemon v Kurtzman government assistance to religious schools is unconstitutional Lemon Test government assistance is constitutional as long as it has a secular purpose that does not help or inhibit any religion Equal Access Act public schools cannot discriminate against students for their personal beliefs o Free Exercise Clause the government cannot interfere on an individual s practice of religion Reynolds v US polygamy unconstitutional Wisconsin v Yoder state cannot enforce an education for Amish students beyond 8 grade 0 Freedom of Speech and Press 0 Lacks absolute meaning leading to thousands of court cases o Prior restraint the government cannot prohibit speech or expression before the fact Alien and Sedition Acts banned criticism of Federalism and made it a criminal offense 0 1800 presidential election Thomas Jefferson who opposed the acts was elected and pardoned all who were convicted New York Times Co v US Pentagon Papers case unconstitutional for the government to stop publication of Department of Defense39s secret documents o The Civil War More than 100 sedition prosecutions from 1890 to 1900 Publishing and distributing proslavery information was an offense in the North and anti savery information was an offense in the South Lincoln39s unconstitutional wartime decisions 0 Illegal to publish criticism of the government or the war 0 Arrested seditious newspaper editors 0 Censored mail o World War I Espionage Act of 1917 limited freedom of speech and press during wartime 0 Passed through Woodrow Wilson and Congress Schenck v US Upheld the Espionage Act for speech that poses danger 0 Clear and present danger test draws the line between protected and unprotected speech if it poses an obvious hazard o Ex antiwar leaflets are dangerous during wartime Brandenburg v Ohio direct incitement test decided what kinds of speech could be limited by the government 0 Direct incitement test promotion of illegal activity is protected until it is likely to or intended to occur o Symbolic Speech Stromberg v CA the Court upheld the right to display opposition to the government in this case a Communist red flag Tinker v Des Moines students have the right display their protest of the Vietnam War Burning of the American flag is protected o Hate Speech RAV v City oft Paul illegal to speak or act in a way that poses alarm or danger on the basis of race gender religion etc Some universities established quotfree speech zones o Libel and Slander Libel must be proven false in order to fight it New York Times Co v Sullivan libel against an official is illegal only if they knowingly disregarded the truth 0 Activists accused Alabama officials of racial abuse Chaplinsky v New Hampshire fighting words are not protected speech o Obscenity Before 1957 what was considered obscene was based off of English common law 0 quotcorrupts those whose minds are open to immoral influences Roth v U defined obscenity was an appeal to indecent interests 0 Difficult for the Court to judge what was quotindecent Miller v California 1973 tests obscenity by the lower courts if they consider it offensive especially sexual content taking into consideration literary artistic political and scientific value The Protect Act child pornography is not protected 0 Freedom of Assembly and Petition o Dejonge v Oregon 1937 the freedom of assembly was applied at a state level o The Court is the ultimate judge of whether assembly and petition is a hazard of national security 0 The Second Amendment o Right to Bear Arms First established for men to protect their settlements in colonial times U v Miller protects the right to own normally sized militia weapons Brady Bill mandated a waiting period of 5 days on the purchase of guns Violent Crime Control and Law Enforcement Act banned assault weapons 0 Passed by Clinton in 1994 was not renewed in 2004 o The Rights of Criminal Defendants Writs of habeas corpus court orders a prisoner must be informed of the charges against them and it must be proven they are being held lawfully Ex postfacto laws law that applies to actions committed before the law was passed 0 Forbidden by Article I Bills of attainder a legislative act that punishes a person without judicial action 0 Forbidden by Article I Due process protects criminals so well that the Warren Court was blamed for giving more rights to criminals than to their victims 0 The Fourth Amendment o Protection against unreasonable searches and seizures The police may search a suspicious or arrested person open fields and items that are in plain view or tangible Must knock before entering unless they have a warrant o Technology for the detection of marijuana Unconstitutional to use thermal imagers in public places Constitutional to use ow fying aircraft and binoculars 0 The Fifth Amendment o Sef incrimination a suspect cannot be forced to testify against themselves I Miranda v Arizona a person must be read their rights protected by the 5 Amendment by the police I Miranda Rights policeread rights protected by the 5 Amendment including the right to remain silent and the right to an attorney o Double Jeopardy clause individuals cannot be tried for the same offense twice I Palko v Connecticut defendant argued the 5quot Amendment when retried and sentenced to death for firstdegree murder 0 The Supreme Court upheld the conviction and death sentence 0 Overruled in 1969 The Exclusionary Rule o Used alongside the Fourth and Fifth Amendments o The police cannot use illegally collected evidence in a trial o Weeks v US adoption of the exclusionary rule 1914 o Mapp v Ohio any found evidence in violation of constitutional rights cannot be used I Certain exceptions are made for evidence that would have been discovered The Sixth Amendment o Standards of due process that the federal courts are to follow in criminal cases I Speedy and public trials I Diverse and impartial juries I Trial in the state which the crime was committed I Knowledge of the charges brought I Gathering of witnesses I Right to counsel o Gideon v Wainwright those who cannot afford an attorney may have one appointed The Seventh Amendment o Right to a jury trial in civil cases that exceed 20 The Eighth Amendment o Cruel and unusual punishment I The English Bill of Rights protected against cruel and unusual punishment since early practices of torture in the 1600s I In the 1800s electrocution and public shooting were not considered cruel and unusual in the US o Furman v Georgia Supreme Court ruled the death penalty unconstitutional Gregg v Georgia the death penalty is constitutional because it is based on circumstance 0 House v Bell a death row inmate was given more federal appeals because evidence from DNA tests suggested he was innocent O The Right to Privacy o Unstated liberties that are implied through the 1 3rd 4 9 and 14quot Amendments o Birth control I Griswold v Connecticut 1965 created quotzones of privacy to protect married couples and later unmarried couples right to contraceptives o Abortion I Roe v Wade 1973 the right to privacy protected the right to an abortion 0 Jane Roe a pseudonym for plaintiff Norma McCorvey 0 Divided pregnancy into three stages 0 4 judges were willing to overrule Roe v Wade but Sandra Day O39Connor was the 5 vote to keep the previous ruling I Webster v Reproductive Health Services expensive fetal practicality tests that were required by states were upheld I Planned Parenthood of Southeast PA v Casey the state could place restrictions on abortions as long as it did not put an quotundue burden on women o Homosexuality I Lawrence v Texas anti sodomy laws violated right of privacy o Right to Die I Gonzales v Oregon the Court upheld Oregon39s assisted suicide law
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