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8 - Civil Liberties: Protecting Fundamental Freedoms

The Constitution and the Bill of Rights

  • The notion of incorporating a list of individual rights protections within a constitution wasn't unique to the year 1787.
  • Following American independence, state governments began including protections for individual rights in their constitutions, although these protections varied significantly.
  • Some fundamental rights, such as freedom of the press or religion, were often missing, and persecution of religious minorities and religious qualifications for office were common.

U.S. Constitution's Protections

  • The U.S. Constitution, aware of the necessity to safeguard individual rights, included specific protections:
    • A strict definition of treason to protect the right to criticize the government, mirroring First Amendment speech protections.
    • Protections for habeas corpus rights, jury trial rights, and religious freedom across various articles.
  • Despite these protections, the original document lacked a comprehensive bill of rights.

Bill of Rights Definition

A list of fundamental rights and freedoms that individuals possess. The first ten amendments to the U.S. Constitution constitute the Bill of Rights.

Debate and the Lack of a Bill of Rights

  • The Constitutional Convention debated including a bill of rights but ultimately rejected proposals for its inclusion.
  • The absence of a comprehensive list of individual rights became a significant point of contention, especially among the Antifederalists.

Federalists vs. Antifederalists

Antifederalist Concerns

  • The Antifederalists criticized the Constitution's lack of a bill of rights, fearing it signaled the growth of centralized power.
  • They advocated for more protections for state rights and individual freedoms.

Federalist Response

  • Hamilton, in Federalist No. 84, argued against a bill of rights, suggesting it was unnecessary and potentially dangerous, as it might imply that unlisted rights were not protected.

Ratification and the Promise of Amendments

  • To quell concerns, promises of amendments were made during state ratification debates.
  • James Madison introduced proposed amendments in Congress, leading to the ratification of the first ten amendments, known as the Bill of Rights, on December 15, 1791.

The First Ten Amendments: Overview

  • The amendments cover a wide range of protections, from freedom of speech and religion to rights concerning the judicial system and federalism.
  • The Ninth Amendment addresses Hamilton's concern by asserting that the list of rights in the Constitution is not exhaustive.

Selective Incorporation

Introduction to Selective Incorporation

  • Selective incorporation involves extending the protections of the Bill of Rights to state laws and actions through the Fourteenth Amendment's due process clause.
  • This process has gradually applied almost all the rights contained in the Bill of Rights to the states, ensuring fundamental liberties are protected at all levels of government.

Historical Context and Early Challenges

The Case of Benjamin Gitlow

  • Gitlow was arrested in 1919 under the New York State Criminal Anarchy Act for advocating the overthrow of the government through his publication, "The Revolutionary Age."
  • His conviction led to a significant Supreme Court case, Gitlow v. New York (1925), where he argued the law violated his Fourteenth Amendment rights to due process.

Supreme Court's Decision in Gitlow v. New York

  • The Court held that certain restrictions on speech could be legitimate if they posed a sufficient threat to public welfare or safety.
  • This decision marked the beginning of the doctrine of selective incorporation, applying the First Amendment's protections to the states.

The Fourteenth Amendment and Due Process Clause

A clause in the Fourteenth Amendment that prevents state governments from depriving citizens of life, liberty, or property without legal safeguards.

Selective Incorporation Over Time

  • The Supreme Court has used the due process clause to incorporate most of the Bill of Rights' protections against state actions.
  • Notable cases include Gitlow v. New York for freedom of speech and McDonald v. Chicago for the right to bear arms.

Selective Incorporation Definition

The piecemeal process by which the Supreme Court has affirmed that almost all of the protections within the Bill of Rights also apply to state governments.

Key Supreme Court Decisions on Incorporation

  • The table in the notes lists significant Supreme Court decisions related to selective incorporation, including rights ranging from freedom of speech to the right to a fair trial.
  • Not all rights have been incorporated; for example, the right to an indictment by a grand jury and the right to a jury trial in civil cases remain exceptions.

Implications of Selective Incorporation

  • Selective incorporation ensures that states cannot infringe upon fundamental freedoms protected by the Bill of Rights.
  • This doctrine has significantly expanded the scope of civil liberties in the United States, making the protections of the Bill of Rights applicable at both federal and state levels.

Selective incorporation underscores the evolving understanding of the Constitution and the Bill of Rights in safeguarding individual freedoms against overreach by state governments, reinforcing the principle that certain rights are so fundamental that they must be protected across all layers of governance.

The Right of Religious Freedom

  • The First Amendment safeguards religious freedom through two clauses: the establishment clause and the free exercise clause.

Establishment Clause

  • Prevents the government from requiring citizens to join or support a religion.
  • Forbids the state from declaring an official religion.

Free Exercise Clause

  • Protects individuals' rights to practice and express their religious beliefs.
  • Allows for religious expressions at home, provided they don't infringe on others' rights.

Complexities in Applying Religious Freedoms

  • Cases often present conflicts between the establishment and free exercise clauses, requiring careful interpretation by the Supreme Court.
  • Historical context shows a deep-rooted wariness about governmental power over religious practice, leading to the principle of separation between church and state.

Supreme Court and the Establishment Clause

Taxpayer Funds and Private Religious Schools

  • In Board of Education v. Allen (1968), the Court ruled some forms of taxpayer support for private religious schools permissible.

Prayer in Public Schools

  • Cases like Engel v. Vitale (1962) and Abington School District v. Schempp (1963) ruled school-sponsored prayers and Bible readings unconstitutional.

Current Guidelines

  • Students may pray during noninstructional time, participate in religious groups, and express religious beliefs in assignments, following specific guidelines.

Lemon Test

  • Established in Lemon v. Kurtzman (1971) for permissible government involvement in religion, requiring a secular purpose, not advancing/inhibiting religion, and avoiding excessive government-religion entanglement.

Free Exercise and the Supreme Court

Wisconsin v. Yoder

  • Ruled that compulsory school attendance law violated the Amish community's free exercise rights by infringing on their religious beliefs and way of life.

Employment Division v. Smith

  • Introduced a neutrality test for conflicts between religious expression and state action, ruling state laws as religiously neutral if they don't target a specific religion and serve a compelling state interest.

The Right of Expression

Freedom of Expression

  • Definition: A fundamental right affirmed in the First Amendment to speak, publish, and protest.

Components of Freedom of Expression

  • Speech, Press, Assembly, and Petition: Essential for criticizing those in power, as demonstrated by historical figures and events like Thomas Jefferson, the Federalist Papers, and Edward Snowden.

National Security vs. Political Expression

  • Balancing act between ensuring national security and preserving individual rights to political expression.
  • Espionage Act of 1917: Criminalizes interference with military operations, including recruiting, with historical cases involving Charles Schenck, Elizabeth Baer, and Edward Snowden.
  • Clear and Present Danger Test: Determines if speech that poses a threat to national security is unprotected, as established in Schenck v. United States.
  • Brandenburg v. Ohio (1969): Set a higher standard for restricting political speech, requiring it to incite imminent lawless action.

The Press and National Security

  • Prior Restraint: Government's suppression of material before publication. Key case: New York Times v. United States (Pentagon Papers case), highlighting the high bar for government to prevent publication.

Symbolic Speech

  • Definition: Expression through images, signs, and symbols. Noted case: Tinker v. Des Moines Independent Community School District, protecting student protest in schools.

Restrictions on Free Speech

  • Defamation (Libel and Slander): Requires proving statements were made with knowledge of their falsity. Public figures face a higher standard.
  • Hate Speech: Protected unless it incites immediate violence. College campus codes on hate speech remain under legal scrutiny.
  • Obscenity and Pornography: Subject to restrictions based on community standards and lack of artistic merit.

Regulating the Internet

  • Challenges in applying "community standards" to online material, with the Supreme Court striking down overly vague and restrictive acts like the Communications Decency Act of 1996.

Time, Place, and Manner Restrictions

  • Government may impose reasonable restrictions in public forums to maintain public order, provided they are content-neutral and narrowly tailored.

Freedom of Assembly

  • Recognized as a cornerstone of civil liberties, with historical emphasis on the right to meet peaceably for consultation and petition for redress of grievances.

Analyzing Political Expression through Memes

  • Exercise: Analyzing viewpoints on the Second Amendment through "Philosoraptor" memes, exploring the effectiveness of humor in political debate.

The Second Amendment and Individual Rights

  • Landmark decisions: District of Columbia v. Heller and McDonald v. Chicago affirm the personal right to bear arms for self-defense, highlighting ongoing debates over gun control and individual liberties.

The Rights of Defendants

Protections Under the Constitution and Bill of Rights

  • Article I Provisions: Prohibits ex post facto laws and bills of attainder.
  • Writ of Habeas Corpus: Guarantees the right to be informed of charges and the basis for detention.
  • Procedural Due Process: Ensures fairness is applied to all individuals equally.

Fourth Amendment: Search, Seizure, Warrants, and Evidence

  • Warrant Requirement: Based on probable cause, exceptions exist for situations like "hot pursuit."
  • Exclusionary Rule (Mapp v. Ohio): Evidence obtained without a warrant cannot be used in court.

Fifth Amendment: Grand Jury, Double Jeopardy, and Self-Incrimination

  • Grand Jury Requirement: For serious federal crimes to decide on indictments.
  • Protection against Double Jeopardy: Prohibits being tried twice for the same crime in the same jurisdiction.
  • Protection against Self-Incrimination: Individuals cannot be compelled to testify against themselves.
  • Miranda Rights (Miranda v. Arizona): Right to remain silent and to have an attorney during interrogation.

Sixth Amendment: Trials, Juries, and Attorneys

  • Right to a Speedy and Public Trial: Ensures a trial without unnecessary delay.
  • Right to an Impartial Jury: Challenges posed by instant news and social media.
  • Right to Counsel: Extended to include provision of attorneys for those who cannot afford one (Gideon v. Wainwright).

Eighth Amendment: Bail and Punishment

  • Prohibition of Excessive Bail: Ensures bail is not set at an amount higher than necessary.
  • Prohibition of Cruel and Unusual Punishment: Includes debates over the death penalty's application and constitutionality.

Key Case Highlights

  • Miranda v. Arizona (1966): Established Miranda rights, protecting against self-incrimination during police interrogation.
  • Gideon v. Wainwright (1963): Guaranteed the right to an attorney for those unable to afford one in state criminal cases.
  • Furman v. Georgia (1972) and Gregg v. Georgia (1976): Addressed the death penalty's application, imposing restrictions and addressing concerns over arbitrary and discriminatory practices.

Challenges and Evolutions

  • The interpretation and application of these amendments continue to evolve, addressing modern challenges like digital privacy, drug testing, and the intricacies of legal representation.

Privacy and Other Rights

The Concept of Privacy in the Bill of Rights

  • The Bill of Rights does not explicitly mention "privacy," yet the Supreme Court has recognized privacy rights in several contexts, extending to personal lives, contraception, abortion, and sexuality.

Privacy in Personal Lives

The Use of Contraceptives

  • Griswold v. Connecticut (1965): Established the constitutional right to privacy regarding contraceptive use for married couples, later extended to unmarried individuals in Eisenstadt v. Baird.

Sexual Conduct

  • Lawrence v. Texas (2003): Expanded privacy rights to include the freedom of consenting adults to engage in private sexual conduct without government interference.

Abortion Rights

  • Roe v. Wade (1973): Recognized a woman's right to choose an abortion during the first trimester of pregnancy, balancing personal liberty with state interests in regulating abortions at later stages.

The Ninth Amendment: Rights Not Specified

  • Clarifies that the listing of specific rights in the Bill of Rights is not exhaustive, ensuring protection for unenumerated rights and addressing concerns about the limitations of a written bill of rights.

The Evolving Nature of Civil Liberties

  • Civil liberties in the U.S. reflect ongoing negotiations between fundamental rights and the need for public order and security. The interpretation and scope of these liberties continue to evolve through activism, judicial decisions, and legislative actions.

Key Issues and Debates

  • Privacy rights, as inferred from the Constitution, cover a range of personal decisions, highlighting the dynamic interpretation of civil liberties.
  • The debate over abortion exemplifies the contentious nature of balancing individual rights with moral and legal considerations.
  • The role of the Ninth Amendment underscores the flexible interpretation of the Constitution to protect broader individual freedoms beyond those explicitly listed.

Challenges and Controversies

  • Balancing privacy rights with societal norms and legal restrictions remains a complex and often controversial aspect of American democracy.
  • Judicial appointments, particularly to the Supreme Court, often become focal points for debates over privacy rights and other civil liberties, reflecting their significant impact on American law and society.