This document discusses the selective incorporation of rights from the Bill of Rights to the states through the Fourteenth Amendment's due process clause. It covers the Supreme Court's protection of free expression, fair trial rights, and other civil liberties over time. Key topics include freedom of speech, religion, press, rights of the accused, and balancing security and liberty in times of war.

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Chapter 4

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The Bill of Rights, the Fourteenth
Amendment, and Selective Incorporation
Selective incorporation of free expression rights
Fourteenth Amendment due process clause prevents states
from abridging individual rights
Supreme Court engaged in selective incorporation—
invoking the Fourteenth Amendment to apply the Bill of
Rights to the states

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The Constitution: The Bill of Rights
and the Fourteenth Amendment
Selective incorporation of fair trial rights
Initial resistance by the Supreme Court to invoke selective
incorporation to protect the rights of the accused in the
states
Change in the 1960s: Court begins to assert and protect
rights of accused

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Civil Liberties Rankings
4-4

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Freedom of Expression
The early period: the uncertain status of the right of free
expression
Sedition Act, 1798
Espionage Act, 1917
Schenck v. United States (1919)
 Clear-and-present-danger test

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Freedom of Expression
The modern period: protecting free expression
Early cold war—freedom of speech abridged in interest of
national security; protected after 1950s
Imminent lawless action test
Symbolic speech protected, but less completely than verbal
speech

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Freedom of Expression
Free assembly
Some restrictions allowed, based on national security or
disruption of daily life
Government can place time, place, and manner restrictions
Press freedom and prior restraint
“Pentagon Papers”
New York Times Co. v. United States (1971)
Prior restraint disallowed under extreme burden of proof on
government

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Freedom of Expression
Libel and slander
Libel: publishing material that falsely damages a person’s
reputation
Slander: spoken words that falsely damage a person’s
reputation
Libel against public officials requires malicious intent

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Freedom of Religion
The establishment clause
Government may not favor one religion over another
Government may not favor religion over no religion
“Wall of separation” versus “excessive entanglement”

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Freedom of Religion
The establishment clause often involves the Lemon test
1. The policy must have a nonreligious purpose
2. The policy’s primary effect must be one that neither
advances nor inhibits religion
3. The policy must not foster “an excessive entanglement of
government with religion

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Freedom of Religion
The free-exercise clause
Government prohibited from interfering with the practice of
religion
Government interference allowed when exercise of religious
belief conflicts with otherwise valid law
Government may not prohibit free exercise of religion

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The Right to Bear Arms
Widely accepted view that the Second Amendment
blocked the federal government from abolishing state
militias
In District of Columbia v. Heller (2008) the Court ruled
that “the Second Amendment protects an individual right
to possess a firearm”
In McDonald v. Chicago (2010), the Court further
extended the 2008 decision to apply to all state and local
governments

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The Right of Privacy
Griswold v. Connecticut (1965): Americans have a “zone
of privacy” that cannot lawfully be denied
Abortion
Protected as a right of privacy in Roe v. Wade (1973)
Webster v. Reproductive Health Services (1989), Planned
Parenthood v. Casey (1992), and Gonzales v. Carhart
(2007) have placed some restrictions on abortion.
 Sexual relations among consenting adults
Anti-sodomy laws in states struck down by Supreme Court
in 2003, overturning the 1986 Bowers v. Hardwick ruling

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Pro-Life vs. Pro-Choice
4-15

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Rights of Persons Accused of Crimes
Procedural due process: procedures that authorities must
follow before a person can lawfully be punished for an
offense
Suspicion phase
No police search unless probable cause that a crime
occurred (Fourth Amendment)
Not a blanket protection; some warrantless searches allowed
based on situation

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Rights of Persons Accused of Crimes
Arrest phase
Fifth Amendment protection against self-incrimination
Miranda v. Arizona: no legal interrogation until suspect has
been warned his/her words could be used as evidence
Miranda warning

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Rights of Persons Accused of Crimes
Trial phase
Legal counsel and impartial jury
 Fifth Amendment: suspect cannot be tried for federal
crime unless indicted by grand jury; states not required to
use grand juries
 Sixth Amendment: right to legal counsel before and
during trial
 Right to speedy trial

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Rights of Persons Accused of Crimes
Trial phase
The exclusionary rule
 No admission of illegally obtained evidence
 1960s expansion of exclusionary rule
 Exceptions: inevitable discovery; good faith

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Rights of Persons Accused of Crimes
Sentencing phase
Eighth Amendment prevention of “cruel and unusual
punishment” of convicted persons
Supreme Court generally allows states to decide
punishments, but has limited aspects of death penalty and
punishments of minors

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Rights of Persons Accused of Crimes
Appeal: one chance, usually
No constitutional guarantee of appeal; but federal and states
allow at least one appeal
Federal law bars a second federal appeal by a state prison
inmate in most instances

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Rights of Persons Accused of Crimes
Crime, punishment, and police practices
Supreme Court rulings have affected police practices
 Miranda
Some poor or arbitrary application of rights
 Racial profiling
Tough sentencing policies popular, but prison overcrowding
an issue

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Rights and the War on Terrorism
WWII detention of Japanese Americans
Detention of enemy combatants
Hamdi v. Rumsfeld (2004)
Hamdan v. Rumsfeld (2006)
Surveillance of suspected terrorists
USA Patriot Act
Warrantless wiretapping
Snowden leaks about NSA communications surveillance

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The Courts and a Free Society
Americans embrace freedom of expression as an abstract
virtue
Americans favor limits of freedom of expression in
particular instances
Judicial system the primary protector of individuals’
rights