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Chapter 4
- 1. Lecture Slides AMERICAN POLITICS TODAY FIFTH EDITION By Bianco Canon Copyright © 2017, W. W. Norton & Company
- 2. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION American Politics Today Chapter 4 Civil Liberties
- 3. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Civil Liberties
- 4. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Defining Civil Liberties • Civil liberties are basic political freedoms that protect citizens from governmental abuses of power
- 5. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Civil Liberties and Civil Rights
- 6. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Civil Liberties: Balancing Interests and Drawing Lines • A fundamental problem of civil liberties is how to balance competing interests such as personal liberty with security or military strategy
- 7. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Balancing Interests and Drawing Lines: The First Amendment
- 8. How it works: in theory Freedom of Expression Freedom of Religion
- 9. They said no. Here’s why.When she refused... How it works: in practice
- 10. Banned. What about...? It’s tough.
- 11. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Origins of Civil Liberties: The Basics • Creation of the Bill of Rights • Due process clause of the Fourteenth Amendment • Selective incorporation • Gitlow v. New York
- 12. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Bill of Rights: A Statement of Our Civil Liberties
- 13. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Freedom of Religion • Establishment clause – Part of the First Amendment that states, “Congress shall make no law respecting an establishment of religion,” which has been interpreted to mean that Congress cannot sponsor or endorse any religion • Free exercise clause – Part of the First Amendment stating that Congress cannot prohibit or interfere with the practice of religion
- 14. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Freedom of Religion: Cross in the Mojave Desert
- 15. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press–Supreme Court Cases • Schenk v. U.S. – “Clear and present danger” test – Allows the government to restrict certain types of speech deemed dangerous • Brandenburg v. Ohio – “Direct incitement” test
- 16. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press—Symbolic Speech • Symbolic speech: nonverbal expression, such as the use of signs as symbols; it benefits from many of the same constitutional protections as verbal speech
- 17. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press—Money as Speech • Spending money in political campaigns is also protected by the First Amendment • The Court balances two values – The public interest in honest and ethical elections – The First Amendment rights of candidates and their advocates
- 18. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press—Hate Speech • Hate speech – Expression that is offensive or abusive, particularly in terms of race, gender, or sexual orientation – Currently protected by the First Amendment
- 19. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press—Prior Restraint • Prior restraint – A limit on freedom of the press that allows the government to prohibit the media from publishing certain materials – The Supreme Court looks unfavorably on government attempts to restrain the media
- 20. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech, Assembly, and the Press—Commercial Speech • Commercial speech: it has become much tougher to regulate commercial speech in our era, though ads can be regulated if they meet any one of three criteria: 1. The ads concern an illegal activity 2. The ads are misleading 3. Regulation advances a substantial governmental interest
- 21. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Second Amendment: The Right to Keep and Bear Arms
- 22. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Second Amendment: The Right to Keep and Bear Arms—Constitutional Issues • The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
- 23. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Law and Order and the Rights of Criminal Defendants • Due process rights – To protect the rights of people who have been accused of a crime – The Fourth, Fifth, Sixth, and Eighth Amendments include • Protection from unreasonable search and seizure • The right to a fair trial • Right to consult a lawyer • Freedom from self-incrimination • Knowing what crime you are accused of • The right to confront your accuser
- 24. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Fourth Amendment: Search and Seizure • “Probable cause” is needed to obtain a search warrant – Restriction is relaxed in schools or with consent of the searched • The exclusionary rule says that illegally obtained evidence cannot be used in a trial – The exclusionary rule has been weakened over time
- 25. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Fourth Amendment
- 26. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The 5th Amendment: Self-Incrimination • Miranda rights – The list of civil liberties described in the Fifth Amendment that must be read to a suspect before anything the suspect says can be used in a trial
- 27. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Property Rights, “Takings,” and the Fifth Amendment
- 28. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Sixth Amendment: The Right to Legal Counsel and a Jury Trial • Right to an attorney – Gideon v. Wainwright • Right to a speedy trial • Right to a trial by jury
- 29. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Sixth Amendment: The Right to Legal Counsel and a Jury Trial—Anwar al-Awlaki
- 30. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Eighth Amendment Bars “Cruel and Unusual Punishment” • The death penalty is legal, though there are restrictions • The Court has increased the number of restrictions on the death penalty in the past 20 years
- 31. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Right to Privacy • Established in Griswold v. Connecticut • Not explicitly mentioned in the Constitution • Implied throughout Bill of Rights • Basis for abortion rights
- 32. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q1 Do you support limitations on some of our civil liberties (such as freedom of speech and search and seizure), if limits on these civil liberties may decrease the potential of a terrorist threat and increase our security? a. strongly support b. support c. oppose d. strongly oppose
- 33. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q2 Should the U.S. Congress pass legislation that makes it a crime to burn the U.S. Constitution? a. yes b. no
- 34. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q3 Should the U.S. Congress pass legislation that makes it a crime to display a noose in a threatening manner? a. yes b. no
- 35. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q4 Should a teacher in a public high school be allowed to begin her class with a prayer? a. yes b. no
- 36. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q5 Should a teacher in public high school be allowed to begin his class with the Pledge of Allegiance, which includes the statement “one nation, under God”? a. yes b. no
- 37. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q6 Do you believe the “freedom of speech” guaranteed by the First Amendment of the U.S. Constitution protects an individual’s right to use hate speech? a. yes b. no
- 38. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q7 Some extremist websites urge the destruction of the United States by “any means necessary.” Should the government attempt to regulate this type of expression? a. No, this is constitutionally protected speech that the government should not regulate. b. Yes, this is not constitutionally protected speech and the government should attempt to regulate it.
- 39. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q8 There is quite a bit of discussion in American politics about the legality of abortion. Which one of the opinions below best agrees with your view on this issue? a. Abortions should never be permitted. b. Abortions should be permitted in cases of rape or incest, or if the woman’s life is in danger. c. Abortions should always be permitted.
- 40. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Public Opinion Poll: Q9 Do you believe that current Federal Communications Commission regulations on obscenities on TV are a. too weak; there should be more regulation. b. just right. c. too strong; there should less regulation.
- 41. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Additional Information Following this slide, you will find additional slides with photos, figures, and captions from the textbook.
- 42. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION School Searches
- 43. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Foreign Intelligence Surveillance Act (FISA) Protesters
- 44. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION John Geddes Lawrence and Tyron Garner
- 45. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Legal Searches: Drug-Sniffing Dogs
- 46. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The Free Exercise Clause: Religious Protections
- 47. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION The First Amendment: Freedom of Speech
- 48. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Selective Incorporation
- 49. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Abortion Rights Today: Parental Consent Laws for Abortion for Minors
- 50. Copyright © 2017, W. W. Norton & Company AMERICAN POLITICS TODAY, FIFTH EDITION Abortion Rights Today: Pre-Abortion Mandatory Waiting Period Laws
Editor's Notes
- Should freedom of religious expression be protected even when acting on those views means discriminating against someone else? In general, discrimination based on religious views is not allowed, but Rowan County Clerk of Courts Kim Davis served time in jail for contempt of court after refusing a court order to issue marriage licenses to same-sex couples.
- The public’s demand for security after September 11 came into contact with the Constitution’s protection of civil liberties in a dramatic way. As part of the war on terrorism, the government engaged in “extraordinary rendition”: Suspected terrorists were taken from their homes or airports, arrested, and taken for questioning to countries that are less protective of civil liberties: Egypt, Syria, Jordan, or Morocco. If they failed to give useful information, they would be beaten, kept in tiny cells, shocked with cattle prods, and water-boarded (simulated drowning). This raises questions of what happens when the wrong person is taken into custody. An equally compelling example comes from Edward Snowden’s revelations about the extent of National Security Agency (NSA) spying on both American citizens and foreigners. Where do we draw the line between the needs of security and the right to privacy? There is no clear answer to how to balance civil liberties and national security. If we accept that some situations, such as imminent terrorist-detonated nuclear attack, might require sacrificing civil liberties, the question becomes how much and under what circumstances?
- How can conflicts be resolved between civil liberties and other legitimate interests, such as public safety and public health? Sometimes freedom is forced to give way. Courts have upheld bans on the religious practice of snake handling and laws requiring the Amish to display reflective triangles when driving slow-moving buggies on public roads, despite religious objections to doing so.
- Bill of Rights: many Antifederalists argued that the national government, as established in the Constitution, would be too powerful without protections for individual rights. The Bill of Rights were added to the Constitution, thus winning the support of antifederalists necessary for ratification. Pre–Civil War: prior to the Civil War, the Bill of Rights applied only to the national government and did not protect citizens in the eighteenth century to the degree that it does now (see the Supreme Court case Barron v. Baltimore).This is important because in the first 80–100 years of our nation’s history, the states had much more power than the federal government did. Civil War Amendments: the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, which abolished slavery and granted civil liberties and voting rights to freed slaves after the civil war; the Fourteenth Amendment, which guarantees equal protection to all American citizens regardless of state of residence, is particularly important for civil liberties. Due Process Clause: part of the Fourteenth Amendment that forbids states from denying “life, liberty, or property” to any person without the due process of law; a nearly identical clause in the Fifth Amendment applies only to the national government. Gitlow v. New York: The first case that found that the Fourteenth Amendment incorporated certain amendments of the Bill of Rights (in this case, the First Amendment), meaning that states were not free to violate those rights. Selective incorporation: the process through which the civil liberties granted in the Bill of Rights were applied to the states on a case-by-case basis through the Fourteenth Amendment; those rights that are protected by selective incorporation are sometimes referred to as an “Honor Roll of Superior Rights.”
- Although you may have heard the phrase about a “wall of separation between church and state,” this phrase is not in the Constitution. It comes from an 1802 letter from Thomas Jefferson to the Danville Baptists. In understanding where to draw the line between church and state today, one can imagine the Court’s decisions on a spectrum from “separationist” (hard line between church and state) to “accommodationist” (allowing religious activity in public institutions). Many controversies surrounding church and state involve what children are taught in public school or whether children are allowed to pray in school. (Compulsory prayer was forbidden in 1962 and 1963: see Engel v. Vitale and Abington v. Schempp.) To what extent are religious organizations allowed in public spaces? For instance, can a town have a crèche in its village square? What if the town were to sponsor the Christmas pageant? Does it make a difference if the town were to spend significant funds on this pageant? To answer these questions, the court developed the Lemon test. Lemon test: from the case of Lemon v. Kurtzman; the Supreme Court uses this test to determine whether a practice violates the First Amendment’s establishment clause. The test claims that any governmental aid must have a secular purpose, does not advance or inhibit religion, and does not foster an “excessive entanglement” between government and religion. The Lemon test has not been totally dropped, but the Court is moving away from it toward an increasingly “accommodationist” perspective. For instance, in Zelman v. Simmons-Harris (2002), the Court ruled that tuition vouchers given to parents did not constitute impermissible state support of religion. Dissenters argued that this was the first time that public dollars were being used for employees of a particular religious organization (in this case, most of the vouchers were used to send poor children to Catholic schools). But the Court’s majority argued that the program was constitutional since the aid went to the parents and not to the schools. The free exercise clause can be more difficult to interpret but, essentially, you can believe whatever you like, but if you act on your beliefs, the government might be able to regulate your behavior. After lawsuits brought by Jehovah’s Witnesses, who believed that reciting the Pledge of Allegiance violated their religion, requiring the recitation of the Pledge of Allegiance is now unconstitutional. Congress and the Courts are going back and forth over whether the Court now needs to have a “compelling” interest to regulate religious practice. (The Court thinks it doesn’t need to have a “compelling interest”—what exactly would that mean?—but just a good one.) Interestingly, the Religious Freedom Restoration Act of 1993 and the Supreme Court decision on União do Vegetal allow certain exceptions to the Controlled Substances Act. These carve-outs allow members of certain Indian tribes to use peyote and certain religious sects to drink hallucinogenic tea as part of religious rites. Another recent case dealt with whether a law school could require an on-campus student organization (the Christian Legal Society) to accept members who had views that differed from the organization’s beliefs. The Court ruled that the school could withhold student funds if the group discriminated in whom it allowed as members.
- Can a cross be displayed on federal land? The Supreme Court has ruled that religious displays on government property must be part of larger, secular displays. This cross on federal land in the Mojave Desert was covered up after it became controversial. Now it looks like a sign.
- Senator Joseph McCarthy stands in front of a map purporting to show communist activity in the United States. McCarthy was a central figure in the post–World War II Red Scare, during which Americans suspected of supporting communism were persecuted and imprisoned. The Alien and Sedition Acts were an example of a restriction on political speech. It would not be the last. During World War I, Congress passed the (similarly named) Sedition Act (of 1918) which outlawed any “disloyal, profane, scurrilous, or abusive language about the form of government, the Constitution, soldiers and sailors, flag and uniform of the armed forces.” An interesting figure in the transition from the old (restrictive) view of freedom of speech to the new (permissive) view, was Oliver Wendell Holmes. In a case against an antiwar pamphleteer, Schenk v. U.S., Holmes developed the clear and present danger test, which allows the government to restrict certain types of speech deemed dangerous. In arguing for this test, Holmes analogized dangerous words to shouting “Fire” in a crowded theater. In future cases, Holmes would be persuaded that “we should be eternally vigilant against attempts to check the expression of opinion that we loathe and believe to be fraught with death.” In this sentiment, he is advocating for a “free trade in ideas.” The free speech test was replaced with a direct incitement test. Established in Brandenberg v. Ohio, this test protects speech under the First Amendment unless it is directed at inciting “imminent lawless action and is likely to incite or produce such action.” Students are only sometimes protected by Direct Incitement. In a bizarre case, Fredrick v. Morse, a student who cut school to attend the march of the Olympic Torch through his home town was punished by his school when he raised a “Bong Hits 4 Jesus” banner. (The student wasn’t trying to make a point; the banner was a joke.) Although he tried to argue that his speech was partially protected by the ruling in Tinker v. Des Moines (which ruled that students did have the right to wear a black armband to class to protest the Vietnam War), the Court found for the school district and ruled that his speech was not protected. The take-away lesson is that freedom of speech does not necessarily apply to students talking about drugs in school.
- The American flag is a popular target for protesters: it has been spat upon, shredded, turned into underwear, and burned. Here, protesters burn a U.S. flag as they march through downtown Washington, D.C., following the Ferguson, Missouri, grand jury’s decision not to indict Officer Darren Wilson for the shooting death of Michael Brown. #BlackLivesMatter #Ferguson
- Congressional regulations over campaign contributions have been repeatedly overturned by the Supreme Court. Initial attempts at regulating money in politics took place in the 1970s, but were overturned by the Court in Buckley v. Valeo in 1976. After the 2004 elections, portions of the Bipartisan Campaign Reform Act of 2002 (BCRA, or the McCain-Feingold Act) were also overturned by the Court. More recently, the Court has further expanded the role of money in politics in 2010 when it ruled that corporations and unions were also protected by the First Amendment.
- Are laws banning hate speech constitutional? Sometimes yes, but the threshold is relatively high. These Ku Klux Klan members are free to hold rallies, preach racism and xenophobia, and burn crosses, as long as they do not directly incite violence or display an “intent to intimidate.”
- Bradley Manning (center), whose job in the U.S. military gave him access to classified information, downloaded thousands of classified videos, diplomatic cables, reports, and other information and gave them to the website WikiLeaks.
- Joe Camel peddles his wares on a New York City billboard. Commercial speech, as a general category, is not as strongly protected by the First Amendment as political speech, but advertising can be limited by the government only in specific circumstances.
- While the Constitution guarantees the individual right to bear arms (as shown by the woman taking target practice), the shootings at Umpqua Community College in Roseburg, Oregon, shocked the nation. In response, college students organized a demonstration on Capitol Hill urging Congress to vote on gun reform. #SecondAmendment #2A #GunControl #GunSense
- The Constitution provides numerous protections for those accused of crimes. Once again, we are asked to decide how to balance the rights of the accused with a desire for a safe and orderly society. This is particularly salient in the wake of the September 11, 2001, attacks as we balance civil liberties against the need for national security. The USA PATRIOT Act is the best example of how tricky this balance can be.
- The Fourth Amendment protects us from “unreasonable searches and seizures.” But what is “unreasonable”? For instance, the Patriot Act authorizes “roving” wiretaps (where a single warrant allows law surveillance and investigation of all forms of communication with a suspected terrorist) and “sneak and peak” searches, wherein police enter a home, look for evidence, and do not tell the suspect of their search. Typically, “fishing expeditions” are not allowed. There are exceptions, including school lockers. In 2003, gun-wielding police burst into a Goose Creek, South Carolina, high school, and ordered students to lie down in hallways as they used dogs to search for drugs. The commando-style raid, caught on the school’s surveillance cameras, outraged parents around the country and made them question the wisdom of police tactics. No drugs or weapons were found during the sweep and no charges were filed. Following the operation, the American Civil Liberties Union (ACLU) brought a lawsuit on behalf of students’ families charging police and school officials with violating the students’ right to be free from unlawful search and seizure and use of excessive force. The school district ultimately granted the students a monetary settlement and agreed to change its policies on drug raids. But what happens if evidence is obtained illegally? The “exclusionary rule” means that “fruit from the poisoned tree” is inadmissible in court. However, a “good faith exception,” which instructs courts to consider the “totality of the circumstances,” means that the exclusionary rule doesn’t always throw out evidence.
- Can the police search your home without a warrant? After Dollree Mapp was arrested for possession of pornographic material, the case made its way to the Supreme Court and the search was ruled unconstitutional. This case established the exclusionary rule for evidence that is obtained without a warrant.
- A citizen who “pleads the Fifth,” invokes the right to remain silent if answering the question would lead to self-incrimination. This is the most famous part of the famous Miranda warning: “You have the right to remain silent . . .” The Supreme Court’s requirement that subjects be read the “Miranda warning”—also known as being “Mirandized”—preceded an era in which crime spiked in America. Whether this was a case of “cause-and-effect” or merely a coincidence, the Supreme Court backed off of expanding civil liberties (or “coddling criminals,” as critics alleged) and carved out exceptions for security. Exceptions include allowances for public safety and for “inevitable discovery.” A recent case weakened Miranda by requiring a suspect to actively invoke the right to remain silent, while a different case strengthened Miranda by limiting a common police practice of getting a confession then reading a suspect their rights and then getting a second confession. Another famous aspect of the Fifth Amendment is its prohibition of double jeopardy, being tried twice for the same crime, which is forbidden by the Fifth Amendment. There are two loopholes to the prohibition on double jeopardy: People can be acquitted on criminal charges but found guilty on civil charges, and they can be tried in federal and state court for the same crime. As the number of federal crimes has increased exponentially, the second loophole is becoming troublesome to many civil libertarians. See Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent, and Gene Healy, Go Directly to Jail: The Criminalization of Almost Everything.
- This is a typical example of the Miranda warning card that police officers carry with them and read to every suspect after an arrest.
- Gideon v. Wainwright In Gideon v. Wainwright, Clarence Gideon was accused of breaking into a pool hall and stealing beer, wine, and money from a vending machine. Since he was poor, he could not afford an attorney, and he defended himself. Ultimately, the Court overturned his conviction, stating “in our adversary system of criminal justice, any person hailed into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him.” To learn more about this case, see Gideon’s Trumpet, which is both a book and a movie. This right has been strengthened over time by both Congress and the Court. Congress passed the Criminal Justice Act, which better protected poor defendants the year after the Gideon decision, and the Court has since defined a general right to effective counsel. (Certain defendants have successfully appealed their convictions on the basis of ineffective counsel from a public defender. (See the Supreme Court case Strickland v. Washington or Padilla v. Kentucky.) The Sixth Amendment also guarantees the right to a “speedy” and public trial in front of an impartial jury. What constitutes a “speedy” trial? According to the 1974 Federal Speedy Trial Act, a trial must begin within 70 days from the date of arrest. And what’s an “impartial jury?” This issue is blurrier, but the Court has ruled that it has to do with jury selection and peremptory challenges (these allow lawyers to eliminate prospective jurors) which must not be made on the basis of race or gender. Because of the right to trial by jury, the Court has struck down several forms of mandatory sentencing that require judges to impose sentences based on facts other than those confessed to by a defendant or proved to a jury beyond a reasonable doubt.
- The fight against terrorism has raised controversial questions about due process rights. After the United States killed Anwar al-Awlaki—an Al Qaeda leader living in Yemen, and a U.S. citizen—critics argued that his due process rights, such as the right to a fair trial, had been violated.
- In the past decade, the Court has reversed course by banning the death penalty for the “mentally retarded” (2002), “people of minor age” (2005), and “child rapists” (2008). The Founders would be surprised that this amendment is applied to the death penalty; after all, the Fifth and Fourteenth Amendments note that one cannot be deprived of “life” without due process . . . so we can infer that one could be deprived of life if there was due process. Proportionality examples include punishments such as stripping the accused of citizenship and incarceration for drug addiction. Laws like California’s Three Strikes, which might involve harsh punishments for mild third crimes, have been found constitutional.
- The Court ruled that the First, Third, Fourth, Fifth, and Ninth Amendments all imply privacy rights in various forms, and thus certain parts of citizen’s lives ought to be shielded from government. The Griswold decision paved the way for the landmark Roe v. Wade decision, which struck down state limits on abortion.
- Law enforcement officials may conduct searches in schools if they have “reasonable suspicion” of illegal activity.
- The Director of National Intelligence testified at a congressional hearing on possible changes to the FISA as protesters in the background called for an end to government surveillance.
- Tyron Garner and John Geddes Lawrence after the Supreme Court decision in Lawrence v. Texas in 2003 established broad privacy rights for sexual behavior (including homosexual behavior).
- Federal agents use a drug-sniffing dog to inspect a car.
- Demonstrators rally outside of the U.S. Supreme Court during oral arguments in the 2014 Hobby Lobby case. The court ruled that a for-profit corporation may exclude contraceptives from their employees’ health insurance, which is otherwise entitled by federal law, based on the religious objections of the corporation’s owners. #TeamLife
- Should free speech be protected even when the ideas are offensive? The Supreme Court ruled that the Westboro Baptist Church had a right to protest at military funerals, even though many Americans found the arguments and approach of the church members deeply offensive.
- The process of applying the Bill of Rights to the states progressed in two stages. The first, coming in the 1920s and 1930s, applied the First Amendment to the states; the second came a few decades later and involved criminal defendants’ rights.
- The Court’s 1973 decision in Roe v. Wade made abortion legal throughout the United States. How do abortion rights look today? What do the numbers say?
- The Court’s 1973 decision in Roe v. Wade made abortion legal throughout the United States. How do abortion rights look today? What do the numbers say?