Civil Liberties
Liberties and Rights compete with Order.

An obstacle to ratification of the U.S. Constitution was its failure to innumerate liberties and rights.

Bill of Rights corrected this.
Civil Liberties

"freedoms guaranteed to the individual"
May be called Negative = "government is forbid to do something that affects the people" 
Examples: Congress 'shall make no' law abridging freedom of speech' (1st Amend); "Excessive Bail 'shall not' be required" (8th Amend).
Civil Rights

"what the government must do or provide: voting, jury trial in certain cases".
Positive statements enumerating 'powers and privileges' guaranteed citizens and protected from 'arbitrary' removal by govt or other people.
Example: "In all criminal prosecutions the accued 'shall have' the right to a speedy trial" (6th Amend)

People have "rights"
People have "Privileges" (govt may always regulate privileges = licenses)
Governments have "powers"
No Right is absolute!
Select Liberty Categories

Freedom of Religion (1st Amend)
Freedom of Expression (1st Amend)
Right to Bear Arms (2nd Amend)
Non-enumerated Rights (9th Amend)
Constitutional Problematics

The Constitution was designed to "limit central govt" but provide sufficient power to hold the states together and provide assurances of freedom while establishing order.

The Bill of Rights = imposed limits on the national government.
First 10 Amendments to the Const are called the Bill of Rights
Until the 14th Amend these limits applied to the national govt, not to the states.
Freedom of Religion

1. forbids govt to establish a religion (Establishment Cl.);
2. forbids govt to interfere with the exercise of religion (Free-Exercise Cl).

Judicial Interpretation to date:
Freedom to 'believe' is unlimited; freedom to 'practice' may be limited.
A religion cannot directly benefit from government action (indirect is ok).
Establishment Clause

gov't must remain neutral on religion
indirect assistance is ok
Example:
1879:  Court said the Est. Clause means there must be a "wall of separation between church and state".
1947: Court said "providing free transportation to parochial schools" is ok.
1968: Court held "program allowing parochial school students to borrow state-purchased text books" ok.
Test for "too much" assistance

Lemon v. Kurtzman 1971
(state program helping pay parochial school teacher salaries)
3 Prong Test for Constitutional assistance:
1. program must have "a" secular purpose
2. primary effect should not be to advance or inhibit a religion
3. Must not 'excessively' entangle govt and religion.
Lemon Test Relaxed
25 years followed
Agostini v Felton (1997) Modification
(held: NY public school teachers could teach remedial education to disadvantaged students in NY parochial schools at taxpayer expense)
Attempts to be "neutral" avoid "excessive entanglement".
Display of Religious Artifacts on public Property

Lynch v. Donnelly (1984)
held: Nativity scene displayed 'with' commercial Christmas symbols included secular purpose (holiday)
no primary effect of benefitting religion
govt and religion not excessively entangled.
School Prayer

since 1962: prayer in public school  with government support is unconstitutional entanglement (Engel v. Vitale (1962)

But: Religious training after school activity is now constitutional (2001)
Three Problems the Court Seeks to Balance

1. Tolerance of a dominant religion at expense of other religions risks minority discontent
2. Support for no religion risks majority discontent
3. Support for all religion comes at the expense of nonreligion but poses the least threat to order.
Free Exercise Clause

Establishment Cl. and Free Exercise Cl. compete.

1. Does free exercise require the govt to grant special privilege where legal duties may conflict with religious obligations.
military service, working on Sunday (sabbath), refusing medical services, use of drugs in worship
Free Exercise Cases

Work on Sabbath
Sherbert v. Verner (held: 1st amend protects religious observances as well as beliefs

"Strict Scrutiny":  any law affecting religious belief or observances must have a "compelling governmental interest" to be served and "be the least restrictive means for achieving that interest'.
very high standard
Free Exercise and Use of Drugs in Sacrament

Assuring other laws that are freely regulated does not necessarily violate Free Exercise.  

Freedom of Expression



Free Expression Clauses: Involves Press and Free Speech, Action.

"Seditious statements are not protected."
1. Govt may only regulate or punish advocates of ideas if "intent to promote lawlessness", and "high probability that such action will occur" can be proved.
2. Govt may impose reasonable restrictions on the means of communicating ideas that may incidentally discourage free expression.
Freedom of Speech

Speech as a means to advocate ideas is protected by the 1st amend. 
Speech as means of incitement is not protected

Test: "Clear and Present Danger" (Schenck v. U.S. 1919)
1925 Schenck applied to the States as well through 14th amend Due Process Cl.
1951 Clear and Present Danger" broadened to "Grave and Probable Danger"
Symbolic Expression is Speech

nonverbal
less protected than pure speech
Dress in opposition of War (Tinker v Des Moines 1969)

Fighting Words

Fighting words are speech that is not protected by the 1st Amend.
F.W.'s  inflict injury or tends to incite an immediate disturbance of the peace.

But:  One Man's vulgarity is another's Lyric!
An expression of an idea is different from an expression of an emotion. (Cohen v. California 1971)
Speech on the Web

Communication Decency Act 1996 - crime to circulate "patently offensive" sexual material on websites accessible to minors (declared unconstitutional)
Reno v. ACLU 1997 - Internet is like print material.  Therefore it enjoyes wider latitude in protection to print material.
Free Expression and Obscenity

Obscene material is not protected
Miller Test for Obscenity
1. Taken as a whole, it appeals to the purient interst
2. It portrays sexual conduct in a patently offensive way,
3. Taken as a whole, it lacks serious literary, artisitic, political, or scientific value.
Freedom of the Press

1st Amend:  The govt will not interfere with the freedom of the press.

Courts have held consistently:
1. freedom of the press does not override the requirements of law enforcement
2. Educators may limit speech within the confines of the school curriculum if their actions serve any "valid educational purpose".
3. people have the right to assemble peacefully in order to petition the government
4. Govt cannot prohibit peaceful political meeting
5. Govt cannot criminalize those who organize, lead, and attend peceful political meetings.
Exception to free press

Defamation
1st amend protects all statements about the conduct of "public officials" except statements made with "actual malice".
applies to other publishers as well (internet)
applies to other "public figures"; people who have assumed roles of prominence in society or thrust themselves into the limelight or public controversy.
even outrageous and offensive criticism of public figures is protected.
Free Press cannot be burdened with "prior restraint"
even govt documents may be published if not proved that publishing created 'immediate, inevitable, and irreprable harm that would come from the publication of the documents.'
Right to Bear Arms

Source: 2nd Amendment
Two Interpretations:
Gun Control Advocates:  the amendment protects rights of 'states' to maintain 'collective militias'
Gun Use Advocates: the amendment protects rights of 'individuals' to 'own and use guns.'

Court Holds

Restrictions on ownership are ok.
Prohibition on ownership is protected right.
Applying the Constitutional Bill of Rights to the Many States.

The Constitution originally only prohibited certain action at both the national and state levels
Bill of Attainder (laws that make a person guilty of a crime without trial)
Ex Post Facto Law (law that makes an action a crime only after the act takes place)
Obligation of Contracts (no nation or state may impair parties obligations under or terms of a contract)

Otherwise the U.S. Const. did not apply to State Power

14th Amendment

"due process Clause"
allows individuals to contest state conduct as a violation of their federally assured liberties and rights
14th Amend has two consequences for government:
1. it requires the govt to adhere to appropriate procedures,
2. it forbids unreasonable government action.
How the 14th Amendment Evolved (1868)

"no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S, nor shall any state deprive any person of life, liberty, or property, without due process of law".

1897: Sup Ct held states are subject to the 5th Amendment (no taking of private property without just compensation)
1925: Due process extended to state attempts to limit free speech and free press.
1969: Sup Ct held "most of the Bill of Rights gurarantees are "fundamental" and subject to due process.
Constitutional Guarantees are particularly important to Criminal Procedure.


Fundamental Rights
1. Right to Jury Trial in Criminal Cases, (Duncan 1968) (min 6 jurors)
2. Right to attorney in Criminal Case, (Gideon 1963)
3. Right to be informed of constitutional rights upon "custody" and any "in-custody questioning" (Miranda 1966)
4. Right against "unreasonable searches and seizures (Wolf 1949)
Exclusionary Rule = evidence obtained in an illegal search an seizure cannot be used in court against the accused in Fed cases.
Mapp 1961 - Wolf exclusionary rule extended to states.
Leon 1984 - "good faith exception"
Good Faith Exception
evidence seized on basis of mistakenly issued search warrant
can be introduced at trial if the mistake was made in good 
faith (all parties involved had reason at the time to believe the warrant 
was proper)
5. Terrorism as Crime and Civil Liberty =  USA Patriot Act - expanded law enforcement and intelligence agency power to "tap" phones, monitor internet, other surveillance.
Section 215 "guidelines for infringing on liberty"
searching private records, library, video stores, doctor's office records
govt only needs to "certify" need without any substantiating evidence other than terrorism is a concern
detracts from historic "judicial oversight" in granting warrants
record holder is "gagged" from telling anyone even the person affected by the records that the govt has made inquiry about them.
Preemptive Prosecution and Detention

labeling of detainees as "enemy combatants" effectively denies fundamental basic legal requirements in detaining.
President as the executive is removed from Court review for abuse of office.
If "enemy combatant" is a U.S. citizen the detainee has the due process protection to a "meaningful opportunity" to contest the basis of the detention.
Source References:

Janda, Kenneth, Jeffrey Berry, and Jerry Goldman. 2009. The Challenge of Democracy.  Boston, MA: WadsworthCengage Learning.
Shea, Daniel, Joanne Green, and Christopher Smith.  2007.  Living Democracy.  Upper Saddle River, NJ: Pearson Prentice Hall.
Schmidt, Steffan, Mack Shelley, and Barabara Bardes.  2008.  American Government and Politics Today.  Belmont, CA: Thomson Wadsworth.
Miroff, Bruce, Raymond Seidelman, and Todd Swanstrom.  2007.  The Democratic Debate.  Boston, MA: Houghton Mifflin Company.
Gitelson, Alan, Robert L. Dudley, and Melvin Dubnick. 2008. American Government.  Boston, MA: Houghton Mifflin Company.
Dreslang, Dennis, James Gosling.  2008.  Politics and Policy in American States and Communities.  New York, NY: Pearson Longman.