University:
California State University, Northridge
Course:
POLS 155 | American Political Institutions
Academic year:

2024
Views:

47

Pages:

27
Author:

Kellen Webster

Chapter 4: Civil Liberties and Civil Rights Part 1 Civil Liberties and Civil Rights Although we tend to use the terms interchangeably, a useful distinction can be made between civil liberties and civil rights. CIVIL LIBERTIES are protections of citizens from unwarranted government action. CIVIL RIGHTS describe government’s responsibility to protect citizens. The Bill of Rights The first ten amendments to the Constitution constitute the Bill of Rights: – – These amendments were designed to protect the basic freedoms of American citizens. The meanings and applications of these rights have changed over time as judicial interpretations of these freedoms has changed. The freedoms included in the Bill of Rights include: – – – – the right to free speech the right to the free exercise of religion prohibitions against unreasonable searches and seizures guarantees of the due process of law As restraints on government action, the guarantees provided in the Bill of Rights might better be understood as a bill of liberties. Although it has been widely popular throughout most of American history, the Bill of Rights was controversial at the time of the founding. In Federalist 84, Alexander Hamilton (as Publius) objected to calls for a “bill of rights.” 1. Hamilton argued that the Constitution already contained sufficient protections of rights. 2. Hamilton further argued that “bills of rights” are appropriate in monarchies but are, at least, unnecessary in republics because in a republic, as he said, “the people surrender nothing” and “retain everything.” 3. Moreover, Hamilton argued that, by “enumerating” rights, the Bill of Rights would actually restrict the rights Americans enjoyed because “they would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” In partial response to Hamilton’s third criticism of the Bill of Rights, the Ninth Amendment was added to the Constitution. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Like Alexander Hamilton, James Madison thought the main text of the Constitution, particularly the separation of powers and federalism, provided important protections of rights. Selective Incorporation On a case-by-case basis, the Supreme Court began recognizing a role for the national government to protect citizens from state governments. Selected Provisions and Amendments Date "Incorporated" Key Cases Eminent domain (V) 1897 Chicago Burlington and Quincy Railroad 11. Chicago Freedom of speech (I) 1925 Git/ow v. New York Fr edom of the press (I) 1931 Near 11. Minnesota ex rel. Olson Free exercise of religion (I) 1934 Hamilton v. Regents of the University of California Freedom of assembly (I) 1939 Hague v. Committee for Industrial Organization Freedom from unnecessary search and seizure (IV) 1949 Wolf 11. Colorado Freedom from warrantless search and seizure ("exclusionary rule") (IV) 1961 Mapp TABLE 4.1 Incorporation of the Bill of Rights into the Fourteenth Amendment (top) 11. Ohio Selected Provisions and Amendments Freedom from cruel and unusual punishment (VI 11) Date "Incorporated" I Right to counsel in any criminal trial (VI) Right against self• incrimination and forced confessions (V) Right to privacy (111, IV and V) Right to remain silent (V) Right against double jeopardy (V) I I I ' Key Cases 1962 Robinson v. California 1963 Gideon v. Wainwright 1964 Mallory 11. Hogan Escobedo v. Illinois 1965 Griswold v. Connecticut 1966 Miranda 1969 Benton v. Maryland I ' • TABLE 4.1 Incorporation of the Bill of Rights into the Fourteenth Amendment (bottom) 11. Arizona A first “wave” of incorporation occurred in the 1920s and 1930s that applied key elements of the First Amendment to the states. Palko v. Connecticut (1937) represents an important interlude wherein the Supreme Court refused to incorporate “double jeopardy” (Fifth Amendment) on the basis that it is not a right that is “implicit in the concept of ordered liberty.” In the 1960s, a second “wave” of incorporation focused on applying and enforcing the rights of the criminally accused in the states. Whereas at the beginning of the 20th century, the Supreme Court had incorporated into the Fourteenth Amendment only the “eminent domain” clause of the Fifth Amendment, by 1965 and 1973 the Court had incorporated the “penumbral” (or implied) right to privacy into the Fourteenth Amendment in Griswold v. Connecticut and Roe v. Wade. The Bill of Rights Today The provisions of the Bill of Rights are subject to ongoing evolution and interpretation by the courts, which give clearer meaning and precise application to the Constitution’s various protections. The First Amendment and Freedom of Religion Elements of the First Amendment with respect to religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” – – separation of church and state free exercise of religion Although Thomas Jefferson believed in a “wall of separation” between the church and the state, Supreme Court interpretations of the First Amendment’s “establishment clause” have left room for some mingling of the government and religion. In Lemon v. Kurtzman (1971), the Supreme Court held that government aid to religious schools would be constitutional if it met three criteria, known as the Lemon test. Lemon Test: - The government action must have a secular purpose. - Its effect should neither advance nor inhibit religion. - It does not lead to excessive entanglement with religion. The First Amendment also guarantees citizens’ rights to believe and practice whatever religion they choose; this is the free exercise clause. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), further protecting citizens’ free exercise of religion, though key elements were invalidated by the Supreme Court in the 1997 City of Boerne v. Flores case, wherein the Court reserved the institutional right to balance religious liberty claims against public policy. First Amendment protections of freedom of speech and of the press enjoy some of the strongest Constitutional protections. Encroachments on these First Amendment rights often require that the government meet a strict scrutiny standard which requires the government to show that its action is Constitutional. PROTECTED SPEECH If content is true: If content is false: UNPROTECTED SPEECH All speech is protected by the First Amendment when it is the truth. "True" speech can be regulated only if: • it fails the clear and present danger test, or • it falls below community standards of obscenity or pornography. Defamatory speech is protected when: • it is spoken or written by a public official in the course of official business, or • it is spoken or written by a citizen or the press against someone in the public eye. "False" speech can be regulated or punished only when it can be demonstrated that there was a reckless disregard for the truth (as in libel or slander). FIGURE 4.1 The Protection of Free Speech by the First Amendment The Second Amendment Second Amendment: “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.” Ambiguity and disagreement over the importance of the clause of the Second Amendment concerning a “well regulated Militia” has left Second Amendment protections problematic. Advocates of Second Amendment rights generally adopt legislative strategies against gun control legislation rather than taking their cases to court. One notable victory for gun control advocates was the 1994 Brady bill, passed by a Democratic Congress and signed by President Clinton, that provided for background checks on handgun purchases and banned assault weapons. Still, in 2004, a Republican Congress and President George W. Bush pleased advocates of Second Amendment rights by allowing the assault weapons ban to expire without renewal.

Chapter 4: Civil Liberties and Civil Rights, Part 1

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