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CIVIL LIBERTIES

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									                CIVIL LIBERTIES




The Freedoms of the
   Bill of Rights
                      EQUALITY?
   In a May 1987 speech that aroused much
    controversy, Marshall (Justice Thurgood
    Marshall) pointed out that the Constitution’s
    preamble that begins “we the people,” did not
    include the majority of America’s citizens –
    women and blacks*. He called the Constitution
    “defective from the start” because it required a
    Civil War and tremendous social upheaval “to
    attain the system of constitutional government and
    its respect for the individual freedoms and human
    rights, we hold as fundamental today.”

    *Did not include Native Americans as well….
CIVIL LIBERTIES

           Bill of Rights

           Why?

           Purpose?
        CIVIL LIBERTIES

Individual rights protected by the Constitution
   against the powers of the government.
     Ratified in 1791 by 10 of 13 states*.
   Rooted in the writings of Hobbs, Locke,
  Montesquieu, Thomas Jefferson, James
                 Madison, etal


           *Mass., Georgia, Conn.
        CIVIL LIBERITES AND
            CIVIL RIGHTS
   Civil Liberties              Civil Rights
    Also called “negative         Also called “positive
    rights”, limitations on       rights”, protections
    the government.               provided by the
                                  government.
    Individual freedoms
    and protections               Amendments,
    articulated in the Bill       legislation, judicial
    of Rights.                    review/decisions and
                                  executive orders
              THE TWELVE?
   At Jefferson’s (anti-federalist) urging Madison
    (federalist) drafted 17 amendments for congress.

   Congress passed 12

   Amendments one and two included:
    minimum representation numbers for the house
    and compensation for congress (27th amendment)

   The states adopted 10

   Introduced in 1789, adopted 1791
             INCORPORATION

   1925-1969 Supreme Court through a number of decisions
    “incorporated” virtually the entire Bill of Rights into the
    1868 14th amendment (equal protection of the laws and due
    process).

   “No state shall make or enforce any law which shall
    abridge the privileges and immunities of citizens of the
    United States; 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.”

   Rights primarily based on race and gender
THE WARREN LEGACY
           The Earl Warren
            Court (1950’s and
            60’s) expanded “civil
            liberties” more than
            any other court in
            history.
APPLYING THE BILL OF RIGHTS
  TO THE STATES (page 89)
            THE UNFOLDING
   Magna Carta (1215) compelling King John of
    England to agree to some governmental
    restrictions and subjects’ rights.
   Mayflower Compact (1620) Mayflower pilgrims
    agree to a set of laws governing behavior for the
    “good of the people”.
   The Colonial Charters (1624-1732) various
    colonial constitutions
   Declaration of Independence (1776)
   Articles of Confederation (1781-1789)
   The Constitution (1788)
           BILL OF RIGHTS
 First   Amendment (1791)

  Freedom of speech and the press.

  The right to assemble and petition for changes.

  Right to association
SEPARATION OF CHURCH
     AND STATE?
             Establishment Clause*
              Government cannot
              establish a state religion or
              favor one over another

              Issues-State support of
              religious schools, prayer
              in school, creation
              teaching, “faith-based”
              initiatives etc.

              Free Exercise Clause
              Practice of one’s faith
        ISSUES OF RELIGION
   Practice one’s faith in prison: diet, length of hair,
    gatherings

   July ruling of 9th Court of Appeals on length of
    hair for Native Americans (double standard for
    men and women)

   Georgia (April, 2006) enacted legislation
    permitting “elective” high school courses in
    religion and public displays of the Ten
    Commandments in court house
PLEDGE ISSUE
                First amendment
                 rights?
                1892-pledge created
                 (without “God”)
                The red scare of 1954-
                 with congressional and
                 presidential support
                 (Eisenhower) “under
                 God” is added
                1955 “in God we trust”
                 was added to our
                 currency
    MORE ON THE PLEDGE
 2002 federal appeals court ruled pledge
  unconstitutional (“under God”)
 Congress attempting to strip the courts of its
  jurisdiction in deciding the issue
 June, 2006 House committee failed to
  forward legislation protecting the pledge as
  it is now written and recited
               SPEECH
                Restrictions
 More likely during wartime:
  espionage (spying)
  sabotage (acts against the security of the
  country)
  treason (betrayal of one’s country)
  seditious speech (encouraging rebellion)
libel (written untruths)
slander (spoken untruths)
fighting words (inciting violence)
obscenity??????????????? (“I know it when I see
it.”, Justice Potter Stewart)
                 Commercial-some
                  restrictions (i.e.
SPEECH con’t.     tobacco, liquor)
                 Press
                 Clear and Present
                  Danger-words used
                  that may present an
                  immediate threat to
                  the public order
                  Press con’t.
                  Preferred-Position
                  Doctrine-protects
                  printed and spoken
                  word (prime tools of
                  the democratic
                  process)
         THE SHIELD LAW
 31 states offer
  protection to
  journalists (including
  California)
 Bills in congress
  pending
 People’s right to know
  vs. government’s right
  to know
          THE RIGHT TO ASSEMBLY
   Peaceful protests, parades,
    marches, demonstrations
    etc.
   Communication between
    people and the
    government as well as one
    another.
   Side shows?
   Gang associations?
   Nazis, KKK etc.
    THE REAL DEAL-RIGHT TO
          ASSEMBLY?
 In an effort to combat gang crime cities are using the
  courts for injunctions that prohibit gang members from:
     associating with one another
     carrying weapons
     possessing drugs
     committing crimes
     displaying gang signals (safety zone)
     curfews
     alcohol possession in public areas
 Cities include Oakland, San Jose, San Francisco, Los
  Angeles, Fort Worth, Wichita Falls and Chicago
 Violation of constitutional rights?
 Affect on crime rates.
 Court involvement in issuing injunctions and acting upon
  challenges
U.S. CONSTITUTION
VS. THE SIMPSONS
          McCormick Tribune
           Freedom Museum Poll
           (released-March 2006)
          25% of Americans can
           name more than one
           freedom in the 1st
           amendment
          22% can name all five
           Simpsons
          1 in 1,000 could name
           all five freedoms
                    BEARING ARMS


 2ndAmendment
  (1791)
 For a militia,
 home protection,
 sport?

 Gun control……
What are you looking at?!
     YOU CAN HAVE THE THE
         GUEST ROOM!
   Third Amendment
    (1791):

    Soldiers cannot be housed
     in a private home without
     consent of the owner

    (Intolerable Acts 1774): no
    town meetings, moving trials,
    closing Boston harbor, riot
    control, soldier housing).
RIGHTS OF THE
  ACCUSED…
         Fourth Amendment
          (1791):
          Unreasonable search/
          seizure and “probable
          cause” (subject to
          interpretation). A crime
          has been committed or is
          about to be committed.

          May, 2006 Supreme Court
          decision allows entry
          without a warrant/knock if
          they believe one is in
          danger or a danger to
          others
        ADDITIONAL RIGHTS
   Exclusionary Rule: Illegally obtained evidence
    may not be used in court proceedings (4th and 14th
    amendments).

   Miranda Warning: Recitation and explanation of
    accused rights upon arrest (i.e.; silence, counsel,
    incriminating statements etc.) Based on Supreme
    Court decision Miranda v Arizona (1966)
BILL OF RIGHTS

          Fifth Amendment
           (1791)

           Grand jury, double
           jeopardy, self-
           incrimination and due
           process (life, liberty,
           property).
RIGHTS con’t.
          Sixth Amendment
           (1791):

           Speedy trial, know charges
           (habeas corpus) public and
           impartial trial of one’s
           peers, defense counsel and
           right to face one’s
           accusers

           Note: In California, charges
           must be filed within 48 hours of
           arrest
GOING BEFORE DA JUDGE
          Civil cases                  Criminal cases

   Disputes between               Illegal acts against
    individuals or groups of        individuals or the state
    individuals                    Misdemeanors
   Divorce, child custody,        Felonies
    personal injury, product       Can include confinement,
    liability, contracts etc.       fines or both
   Monetary awards for
    damages
          THE ADVERSARIES
    First time heard               On appeal
    (original jurisdiction):
                                  Petitioner-person
   Plaintiff-person               filing the appeal (can
    bringing the charges           be plaintiff or
    (criminal cases, the           defendant from lower
    government)                    court)

   Defendant-the person          Respondent-the
    accused                        opposing party in the
                                   appeal
             COURT GLOSSARY
           CIVIL CASES                         CRIMINAL CASES

   Plaintiff: person filing the          Plaintiff: State or People of
    action                                 California

   Defendant: person responding          Defendant: person accused

   Judgment: award by the judge          Judgment: verdict by a judge or
    or jury                                jury

   Penalties in civil cases are          Penalties in criminal cases may
    usually monetary or other relief       include loss of freedom,
    for damages                            restitution, fines, death
  MOVING THROUGH THE
        SYSTEM



Civil and criminal cases…….
        TYPES OF OFFENSES
   Felony: serious crimes
    requiring personal court
    appearances and state prison
    sentences from 16 months to
    life/death and/or heavy fine.
    Examples include murder, rape,        Wobbler: can be charged as
    armed robbery.                         a felony or misdemeanor.
                                           Examples include drug
                                           prosession, domestic violence,
   Misdemeanor: less serious              grand theft etc.
    without the possibility of state
    imprisonment. Could include
    county confinement up to one
    year, community service. work         Infractions: lowest level
    service etc. Can be represented         such as traffic tickets,
    in court by legal counsel.              disturbing the peace etc.
    Examples include selling liquor        usually resulting in fines
    to a minor, public disturbance.
CRIMINAL VS. CIVIL COURT

                 Criminal court:
                  unanimous verdict,
                  beyond a reasonable
                  doubt

                 Civil court: 9 of 12,
                  preponderance of
                  evidence (one side
                  more believable than
                  the other)
               TRIAL BY JURY
               IN CIVIL CASES

   Seventh Amendment
    (1791):

    Jury trials in civil suits
    where value exceeds
    $20.
             JURY SYSTEM
   Juries date back to the Magna Carta (1215)
    whereas one could choose to be tried by
    one’s peers as opposed to being tried by the
    King.
                  PETIT JURY

   Judge decides if
    evidence warrants a trial
.
   Juries of six, eight, or
    twelve are used to hear
    and determine guilt or
    innocence.
          GRAND JURIES
 Grand juries (19-23) seldom used in
  California to assess evidence in developing
  charges
 Used in very serious felony cases
 Can over-turn decisions made in
  preliminary hearings
 Has investigative powers
 Conducted in secret
 District Attorney presents evidence
 Defendant not present and there is no cross
  examination of witnesses
           GRAND JURY
 Roughly twenty-three citizens
 Meet 2-3 days per week
 Meet for 4-6 hours per session
 Serve 6-18 months
 Usually comprised of independent and
  wealthy individuals
BAILS, FINES AND
  PUNISHMENT
           Eighth Amendment
            (1791):
            Excessive bails or fines
            Cruel and unusual
            punishment (death
            penalty)

        Note: plea bargains in 90%
          of all criminal cases
CAPITAL PUNISHMENT
   In U.S. 1000
   executions
   since 1976,
   Eleven in CA
             MORE NUMBERS
   37 of 38 states with the           2004 Executions(59)
    death penalty allow juries
    to consider life without the    Texas 23
    possibility of parole
                                    Ohio 7
                                    Oklahoma 6
   Texas is now one of those
    states                          Virginia 5
                                    North Carolina 4
   Last ten years over 100         South Carolina 4
    wrongfully convicted            Alabama 2
    individuals have been           Florida 2
    released through DNA            Georgia 2
    testing
                                    Nevada 2
                                    Maryland 1
   Ex Illinois Governor
    George Ryan leading             Arkansas 1
    moratorium campaign
    TIME ON THEIR HANDS…
   648 condemned killers on Death Role in San Quentin
    (leads the country)

   Last 25 years six men have been exonerated in the United
    States (from Death Row)

   Commission report due 2007 on death penalty application

   AB1121 would suspend executions until 2009

   Due to the appeals’ process (automatic appeal to the State
    Supreme Court) Each will spend approximately sixteen
    years awaiting execution

   Hanging, gas, electric chair, lethal injection
       CALIFORNIANS AND THE
         PENALTY OF DEATH
   March 2004 Field Poll:
      68% of Californians in support of the death penalty

   Gallup Poll 2005:
        64% of Americans in support of the death penalty

   December 13th. Clemency for Stanley (Tookie) Williams?

   Political and moral considerations for Governor
    Schwarzenegger

   Is it administered fairly? Are the poor and minorities
    adversely affected?
                   AND…..

   Bills of attainder: detained, found guilty
    and sentenced without the benefit of a trial

   Ex post facto laws: the passing and
    enactment of laws that make an action a
    crime after the fact (could have been legal
    when committed)
UNSPECIFIED RIGHTS

            Ninth Amendment
             (1791):
             Rights of the people
             not noted
             are not necessarily
             denied (non-
             enumerated rights).
“RIGHT” TO PRIVACY

            Justice Louis
             Brandeis in a 1928
             “dissent” opinion
             (Olmstead v.
             United States)
             spoke of “the right
             to be left alone.”
PRIVACY VS. SAFETY
         RIGHT TO PRIVACY
         (“Zones of Privacy”)
    (1st, 3rd, 4th, 5th & 9th Amendments)
   Reproductive rights (Roe v Wade, 1973)

   Right to die (Oregon, 1997)

   Homosexual activity (Hardwick v Bowers)

   Privacy rights in cyberspace

   Privacy rights in government (CA)
   Oregon law
                                         DEATH
   California proposal (AB651)
    Compassionate Choices Act          WITH DIGNITY
   Feb. 2005 poll, 70% in favor

   Netherlands’ law ending the
    lives of babies suffering from
    terminal illnesses with parental
    consent

   Belgium allows euthanasia with
    strict guidelines

   Switzerland provides passive
    assistance
MEDICINAL                        MARIJUANA

 California’s 1996 Proposition 215: permits
  cultivation, sale and use for pre-approved patients.
 Ten other states have passed legislation regarding
  medicinal marijuana (Rhode Island, Alaska,
  Colorado, Hawaii, Maine, Montana, Nevada,
  Oregon, Vermont and Washington
 Federal law prohibits growth and use by anyone
 Federal law “trumps” state law

   How can this dispute be resolved?
    PRIVACY INVASION BY THE
           MILITARY?
 The Department of Defense has contracted with a
  private organization to collect personal data on 16-
  18 year old high school students and all college
  students to assist in their military recruiting
  efforts.
 Information being gathered includes birth date,
  social security number, driver license, e-mail
  address, grade point average, major, ethnicity
 Students may “opt out” by submitting detailed
  personal information that will not be used.
       THE RIGHT TO CARE
   In 2006 18 states are considering 36 bills
    that would protect health workers and
    pharmacists who refuse to extend services
    based on personal or religious beliefs

   Could include birth control, in-vitro
    fertilization, physician assisted suicide,
    embryonic stem cells and perhaps gays and
    lesbians
SECURITY VS. SAFETY

     “Those who would
     give up essential
     Liberty, to purchase a
     little temporary Safety,
     deserve neither Liberty
     nor Safety."

       Ben Franklin
STATES’ RIGHTS
          Tenth Amendment
           (1791):
           Reserve Powers of the
           states.
           If not given to the
           federal government
           and not denied the
           states then the powers
           belong to the states
           (the people)
     OR IN OTHER WORDS..

   State governments and the people of the
    United States retain any powers the
    Constitution does not specifically grant the
    federal government or prohibit to the state
    governments,.
     RESERVED POWERS
 Establish local government
 Conduct elections
 Determine voter qualifications
 Regulate intrastate commerce
 Provide for public health, safety and morals
 Maintain a militia (National Guard)
      AND ANOTHER THING…
   14th Amendment               Incorporation Doctrine

    No state may pass a           Making the Bill of
    law depriving citizens        Rights applicable to
    of life, liberty or           the states through the
    property without due          14th amendment.
    process of law or
    equal protection of the
    law.
          CATCHING SPIES AND
             TERRORISTS

   Foreign Intelligence
    Surveillance Act (FISA)
    1978

   Anti-Terrorism
    Acts of 1996 and 2001

   Patriot Act 2001 and
    Patriot Act II 2006
     FOREIGN INTELLIGENCE
    SURVEILLANCE ACT (1978)
   Department of Justice applies for authorization of
    electronic surveillance to obtain foreign intelligence
    information (national security)
   May appeal to a panel of three & the Supreme Court
   Court has seven federal district court judges (staggered
    terms) appointed by Chief Justice of the Supreme Court
    serving in various circuits.
   Records are sealed even to those being investigated.
   Powers expanded by President Clinton to include physical
    searches and information gathered may be used in criminal
    trials (1995)
   Since 1978 almost 9000 warrants issued, five denied
   Emergency provision allows for 72 hr. taps with
    retroactive notification to the court
             FISA NUMBERS

   Court has approved at least 18,740
    applications for electronic surveillance or
    physical searches from five presidential
    administrations since 1979
USA PATRIOT ACT
           Uniting and Strengthening
            America by Providing
            Appropriate Tools
            Required to Intercept and
            Obstruct Terrorism

           Passed soon after
            September 11, 2001

           Over 100 sections

           Extended to February
            2006 then March 2006
     PRESIDENTIAL POWERS
   Bush and the National Security Agency

   Wiretaps ordered without FISA approval

   Domestic spying

   Phone data base of tens of millions

   Presidential prerogative? Constitutional
    abuse?
         WHERE WE ARE…….
   Records: also access to “tangible things,” such as library
    reading records, bookstores, business, banking, credit
    cards, computer use, office and home telephone calls, and
    medical records. May allow the FBI to obtain records
    without a judge’s prior approval.
   Internet: Gives the FBI authority to track Web surfing
    habits. Wiretaps: Allows "roving wiretaps'' that track a
    particular individual across phone numbers.
   Warrants: Makes it easier for investigators to ask for
    search warrants.
   Secret searches: Authorizes "sneak and peek'' searches
    without requiring notification until after the search is
    carried out.
   Detention without the benefit of legal counsel
   Deportation
   Detention in Guantanamo
    What about the Bill of Rights?
      The 14th amendment?

 Where do we draw the line on “safety vs.
  liberties”?
 Who determines our rights and protections?
 Are we willing to surrender our rights for
  the sake of safety? How much?
 Who’s responsible for safeguarding our
  protections?
FINDING THE BALANCE

             Victims v the
              accused…and the
              accused v society
             Erosion of rights
             Security
             Sex offenders
             Pornography
             Suspected terrorists
     WHAT DO WE KNOW?

 What are civil liberties?
 Where are they found?
 Are they total freedoms?
 Why are they important?
 How are they affected (if at all) by the
  PATRIOT Act and the expansion of
  executive power?
 What are some of the major “privacy”
  issues?
    NEW TOPIC-CIVIL RIGHTS


   Please read chapter
    five on Civil Rights

								
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