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Govt 2305-Ch_4

Govt 2305-Ch_4






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    Govt 2305-Ch_4 Govt 2305-Ch_4 Presentation Transcript

    • Civil LibertiesChapter 4
    • The Bill of Rights The Bill of Rights was written by the founders exclusively to limit the powers of the national government  At the time, there was little concern over the potential of state governments to curb civil liberties  People reasoned that state governments were closer to home and easier to control Overall, the fear of potential tyranny rested in the national government  1833, Barron v. Baltimore – the Supreme Court ruled that the Bill of Rights did not apply to state laws
    • The Bill of Rights Civil Liberties varied from state to state as each state’s constitution address civil liberties differently When the 14th Amendment was ratified in 1868, civil liberties guaranteed by the Constitution began to be applied to the states  Section 1 of the amendment states, “No State shall…deprive any person of life, liberty, or property, without due process of law”
    • Incorporation of the 14thAmendment After 1868, there was no question that the 14th Amendment applied to state governments  However, for decades, courts were reluctant to define the liberties spelled out in the Bill of Rights as constituting “due process of law,” which was protected under the 14th Amendment  The shift to incorporation began in 1925 with Gitlow v. New York Incorporation theory  The view that most of the protections of the Bill of Rights apply to state governments through the 14th Amendment’s due process clause
    • Incorporating the Bill of Rights intothe 14th Amendment Year Issue Amendment Involved Court Case 1925 Freedom of Speech I Gitlow v. New York 1931 Freedom of the press I Near v. Minnesota 1932 Right to a law in capital VI Powell v. Alabama punishment cases 1937 Freedom of assembly I De Jonge v. Oregon 1940 Freedom of religion I Cantwell v. Connecticut 1947 Separation of church and state I Everson v. Board of Education 1948 Right a public trial VI In re Oliver 1949 No unreasonable search and IV Wolf v. Colorado seizures 1961 Exclusionary rule IV Mapp v. Ohio 1962 No cruel and unusual VIII Robinson v. California punishment 1963 Right to a law in all criminal VI Gideon v. Wainwright felony cases 1964 No compulsory self- V Mallory v. Hogan incrimination 1965 Right to privacy I, III, IV, VI, IX Griswold v. Connecticut 1966 Right to an impartial jury VI Parker v. Gladdon 1967 Right to a speedy trial VI Klopfer v. North Carolina 1969 No double jeopardy V Benton v. Maryland 2010 Right to bear arms II McDonald v. Chicago
    • Freedom of Religion Freedom of Religion consists of two main principles in the 1st Amendment  Establishment Clause – prohibits the establishment of a church officially supported by the national government  Applies to: legality of giving state/local gov’t aid to religious organizations and schools; allowing or requiring school prayer; and teaching evolution vs. intelligent design  Separation of Church and State  Free Exercise Clause – guarantees the free exercise of religion  Constrains the national gov’t from prohibiting people from practicing the religion of their choice
    • Separation of Church and State Establishment Clause case law  Aid to Religious Schools  Lemon v. Kurtzman (1971) – Supreme Court ruled that direct state aid to subsidize religious schools was unconstitutional  Aid had to secular in aim and could not advance or inhibit religion  School Vouchers  Zelman v. Simmons-Harris (2002) – school vouchers (state funding) could be used for public or private schools as they do not unconstitutionally entangle church and state
    • Separation of Church and State Establishment Clause case law  School Prayer  Engel v. Vitale (1962) – school recommended prayer violates the Establishment Clause because the business of government is not to compose official prayers for any group of American people to recite as part of a religious program carried on by the government  Ruling based in part on the historical fact that “governmentally established religions and religious persecution go hand in hand”  Wallace v. Jaffree (1985) – Supreme Court ruled that mandated moments of silence for prayer or mediation in all public schools was unconstitutional as it was an “endorsement of religion lacking any clearly secular purpose
    • Freedom of Expression Most invoked freedoms: right to free speech and free press In general, Americans have the right to criticize public officials and their actions without fear of reprisal by any branch of government Prior Restraint  Restraining an activity before it has actually occurred; censorship  New York Times vs. United States (1971) – Pentagon Papers case; gov’t had no standing to restrict the newspaper’s right to publish the documents  Gov’t has a heavy burden of showing justification to restrain the press
    • Freedom of Expression Symbolic Speech  Expression made through articles of clothing, gestures, movements, and other forms of nonverbal conduct  Tinker v. Des Moines School District (1969) – Supreme Court held that the wearing of black armbands by students to protest the Vietnam War was protected under the 1st Amendment  Texas v. Johnson (1989) – Supreme Court ruled that state laws prohibiting the burning of the American flag as part of a peaceful protest was unconstitutional  Virginia v. Black (2003) – a state may ban cross burnings carried out with the intent to intimidate
    • Freedom of Expression Clear and Present Danger Test (1919)  Test to determine when the government may restrict free speech  Justice O.W. Holmes argued only when speech creates a “clear and present danger to the public order [and] it is a question of proximity and degree”  Yelling fire in a theater was an example he used Restrictions on Clear and Present Danger Test  Gitlow v. New York (1925) – 1st Amendment freedoms may be limited if there is a possibility that such expression might lead to some “evil” (bad tendency rule)
    • Obscenity Miller v. California (1973)  Chief Justice Warren Burger created a formal list of requirements that must be met for something to be obscene  The average person finds that it violates contemporary community standards  The work taken as a whole appeals to prurient interest in sex  Work shows patently offensive sexual conduct  Work lacks serious redeeming literary, artistic, political, or scientific merit All this goes into saying, how do you define obscenity in a consistent manner?
    • Slander Can we say anything we want to about anyone else? Defamation of Character  Wrongfully hurting a person’s good reputation  Imposes a general duty on all persons to refrain from making false, defamatory statements about others Can you be sued over it?  Slander – public uttering of a false statement that harms the good reputation of another  Libel – publically writing false statements that harms the reputation of another
    • Student Speech Free Speech in Public Institutions  Public Colleges – most free speech rights of all  Student Activity Fees – required and not a violation of 1st Am. per S.C.  Campus Speech/Behavior Codes – mixed; U of Michigan case ruled that codes are unconstitutional, but schools continue to maintain/enforce them  Intellectual Diversity – big issue in the 1960s; “Will my grades suffer if I don’t agree with the professor?”  Public High Schools – some free speech rights  Restrictions on yearbook/newspaper publications  “Bong Hits 4 Jesus” case; 2007  Public Elementary (Primary) Schools – Officials have the greatest latitude in determining what speech is appropriate for their students What about private schools?
    • Right to Privacy No explicit reference to individual privacy in the Constitution Privacy did not become an issue to the latter half of the 1900s Griswold v. Connecticut (1965)  S.C. overturned a state law that prohibited the use of contraceptives; violated an individual’s right to privacy Privacy Act of 1974  First law regulating information the federal government keeps on individuals  Allows for individuals to petition copies of personal records and attempt to correct inaccuracies
    • Right to Privacy: Abortion Historically, America has taken a very conservative view on abortions before the 1970s  A majority of states deemed abortions a high misdemeanor or felony Roe v. Wade (1973)  S.C. case that viewed abortion from a right to privacy angle  Established a timeline of state intervention for abortions  1st Trimester -- abortion an issue between a woman and their doctor; state can only mandate that abortions performed by a licensed doctor  2nd Trimester – state could intervene to specify what conditions an abortion could be performed  3rd Trimester – state can regulate and outlaw abortions unless it was necessary to preserve the life or health of the mother
    • Right to Privacy: “Right to Die” Can a patient’s life-sustaining treatment be withdrawn at the request of a family member?  What if there is no living will or power of attorney? Terri Schiavo case  No living will and patient in a vegetative state for over a decade  Husband argued that she wouldn’t want to persist in a vegetative state; parents argued against this  Parents sued for custody, but lost on the grounds that a spouse, not a parent, is the legal guardian of a person in Florida  Gov. Jeb Bush attempted to pass a law to overrule the court’s on behalf of the parents, but the law was deemed unconstitutional, and all appeals to the federal level failed Moral of the story: draft a living will or be sure to sign a power of attorney
    • Right to Privacy: “Physician-Assisted Suicide” Do privacy rights include the right of terminally ill people to end their lives through physician-assisted suicide?  Until 1996, federal courts consistently upheld state laws prohibiting this by citing specific statutes or ruling under general homicide statutes Washington v. Glucksberg (1997)  S.C. took a hands-off approach to the issue  “liberty interest protected by the Constitution does not include a right to commit suicide, with or without assistance”  Essentially, this leaves the issue up to the states to decide  Washington, Oregon, and Montana have allowed assisted suicide since this ruling
    • Liberty vs. Security Roving Wiretaps  Can the government conduct general “roving” wiretaps on Americans?  Previously, law enforcement had to request specific phone numbers and computers for a wiretap warrant  After 9/11, roving wiretaps have become more common  Once a judge approves a roving wiretap warrant, when, how, and where the monitoring occurs is left up to the discretion of law enforcement agencies
    • Liberty vs. Security The USA Patriot Act  Auditors after 9/11 claimed that the terrorist attacks were attributed to a lack of cooperation among government agencies  The Bush administration asserted that the Patriot Act would improve lines of communication between federal intelligence-gathering agencies  What the Act does  Eases restrictions on the government’s ability to investigate and arrest suspected terrorists  Authorizes law enforcement to secretly search a suspect’s home, monitor their internet activities, phone conversations, financial records, US Mail, and book purchases  L.E. agencies have to request a search warrant, but the courts cannot turn them down
    • Liberty vs. Security National Security Agency Letters  Patriot Act authorized NSA Letters which serve as subpoenas that do not require probable cause or judicial oversight  These letters can be issued to individuals or financial institutions and demand full secrecy about reasons and activities of the government’s investigation  Additionally, if a suspected terrorist is arrested in relation to these letters, they can be denied bail (breach of 8th Amendment)
    • Rights of the Accused vs. Rights ofSociety Limits on the Conduct of Police Officers and Prosecutors  No unreasonable or unwarranted searches or seizures (IV)  No arrest except on probable cause (IV)  No coerced confessions or illegal interrogation (V)  No entrapment  On questioning, a suspect must be informed of his/her rights  Miranda v. Arizona (1966) “Miranda Rights”  “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed”
    • Rights of the Accused vs. Rights ofSociety Defendant’s Pretrial Rights  Writ of habaes corpus (Article I, Section 9)  An order that requires jailers to bring a prisoner before a court or a judge and explain why the person is being held (“you have the body”)  Prompt arraignment (VI)  The first act in a criminal proceeding, in which the defendant is brought before a court to hear the charges against him/her and enter a plea of guilty or not guilty  Legal counsel (VI)  Reasonable bail (VII)  To be informed of charges (VI)  To remain silent (V)
    • Rights of the Accused vs. Rights ofSociety Trial Rights  Speedy and public trial before a jury (VI)  Impartial jury selected from a cross section of the community (VI)  Trial atmosphere free of prejudice, fear, or outside interference  No compulsory self-incrimination (V)  Adequate counsel (VI)  No cruel or unusual punishment (VIII)  Appeal of convictions  No double jeopardy (V)
    • The Death Penalty 8th Amendment prohibits cruel and unusual punishment How do we define this?  “Cruel and unusual” – punishments more serious than the crime; ex. Hanged, drawn-and-quartered for pick-pocketing  Furman v. Georgia (1972)  Capital punishment does not violate the 8th and 14th Amendments if the criminal has killed or attempted to kill someone  Gregg v. Georgia (1976)  States must establish guidelines to prevent the “wantonly and freakishly imposition of the death penalty”  Essentially, states have to establish a “road map” to the death chamber to prevent lawsuits citing the 8th Amendment