Chapter 4: Civil Liberties Civil Liberties • The Bill of Rights: A charter of liberties • Nationalizing the Bill of Rights • The First Amendment and freedom of religion • The First Amendment and freedom of speech and the press • The Second Amendment and the Right to bear arms • Rights of the criminally accused • The right to privacy The Bill of Rights A Charter of Liberties • How does the Bill of Rights provide for individual liberties? • What are the differences between substantive and procedural restraints? Substantive vs. Procedural Liberties • Substantive liberties • Procedural liberties are restraints on what are restraints on how the government shall the government is not have the power to supposed to act. do. – For example, citizens – For example, are guaranteed due restricting freedom of process of law speech, religion or the press Nationalizing the Bill of Rights • Does the Bill of Rights put limits only on the national government or does it limit the states as well? • How and when did the Supreme Court nationalize the Bill of Rights? Nationalizing the Bill of Rights • The Supreme Court began applying the Bill of Rights to state action by utilizing the Fourteenth Amendment. • The Court selectively applies the liberties on a case-by-case basis. The First Amendment Freedom of Religion • How does the First Amendment guarantee the nonestablishment and free exercise of religion? • In what way has the establishment of religion become a political issue? • In what way has the free exercise of religion become a political issue? The First Amendment Freedom of Religion • The establishment clause provides that Congress shall make no law respecting an establishment of religion. Issues include the following: – School prayer – Bible reading • The free exercise clause protects the right to believe and practice whatever religion one chooses. Issues include the following: – Polygamy – Peyote use The First Amendment Freedom of Speech • What forms of speech are protected by the First Amendment? • What forms of speech are not protected? The First Amendment Freedom of Speech • Strict Scrutiny places the burden on the government to prove that a restriction on speech or press is constitutional: – Political speech is afforded the greatest protection. – Symbolic speech (flag burning) is protected speech. – Speech that is not protected: • Speech that presents a clear and present danger • Libel and slander • Obscenity The Second Amendment The Right to Bear Arms • Is the right to bear arms guaranteed by the Bill of Rights? • How is its exercise restricted? The Second Amendment The Right to Bear Arms • “A well regulated militia, being necessary to the security of a free State, the right of the people to keep an bear Arms, shall not be infringed.” – Yet, no gun control legislation has ever been declared unconstitutional. Rights of the Criminally Accused • Do criminals have rights? • How do the Fourth, Fifth, Sixth, and Eighth Amendments provide for due process of the law? Rights of the Criminally Accused The Fourth Amendment • “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” • Failure to comply with the Fourth Amendment restricts the use of evidence pursuant to the exclusionary rule (Mapp v. Ohio). Rights of the Criminally Accused The Fifth Amendment • A person has the right to a grand jury to determine the merit of criminal charges. • A person cannot be tried for the same crime twice (double jeopardy). • Individuals have the right to remain silent and cannot be compelled to testify against themselves in a criminal case. • Property cannot be taken by the government without just compensation. The Right to Counsel The Sixth Amendment • “In all criminal prosecutions, the accused shall . . . Have the Assistance of Counsel.” • Gideon v. Wainwright established the right to counsel in all felony cases. Cruel and Unusual Punishment The Eighth Amendment • The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishment. • The death penalty was declared unconstitutional in 1972 but was reinstated in 1976 after procedural changes were implemented. The Right to Privacy • What is the right to privacy? • How has it been derived from the Bill of Rights? • What form does the right to privacy take today? The Right to Privacy • Griswold v. Connecticut (1965) created a “zone of privacy” when it was ruled that the state of Connecticut could not prohibit the use of contraceptives: – The Supreme Court concluded that a right to privacy was created through the Third, Fourth, and Fifth Amendments The Right to Privacy Abortion • In Roe v. Wade (1973), the right to privacy was extended, as the Supreme Court declared restrictive abortion statutes unconstitutional. • In Webster v. Reproductive Health Services (1989), the Supreme Court upheld restrictions on the use of public facilities for abortions. • In Planned Parenthood v. Casey (1992), the court narrowed the scope of Roe v. Wade. The Right to Privacy Homosexuality • In Bowers v. Hardwick (1986), the Supreme Court upheld Georgia’s sodomy statute when it ruled that the federal Constitution confers no right on homosexuals to engage in sodomy. • In Romer v. Evans (1996), the Supreme Court struck down a Colorado constitutional amendment that prohibited antidiscrimination measures designed to protect the rights of homosexuals. The Future of Civil Liberties • What is the likelihood that the Supreme Court will try to reverse the nationalization of the Bill of Rights? The Future of Civil Liberties • The Rehnquist Court has not actually reversed important decisions made by the Warren or Burger Courts. • The current balance of justices makes any significant reversals unlikely.