Question Is the government supposed to protect people’s rights? Or are those rights there to protect people from the government? That is a very important distinction. If the rights are there to protect people from the government, then that simply means that the government simply can’t pass laws that infringe on those rights, but when other people have their rights infringed on another, that is a much more localized case. If this were the case, and moved more towards that understanding, then people would be less inclined to say “he infringed on my rights!” Though that causes a problem, for example, with self defense and stuff. This is an interesting topic, how does all of this work, and what role does the government have, and not have in all of this, and how can we encourage a more interdependent society instead of one that is always being offended and stuff. Outline the founding debate about civil liberties and explain how civil liberties apply to the federal government and the states Civil Liberties v Civil Rights - Civil Liberties protect people from the government, civil rights are protections of civilian equality by the government. Bill of Rights contains both. Bill of Rights - There were already certain rights and restrictions in the Constitution (Article I Section 9 and Article III) so Federalists believed that the bill of rights was unnecessary, even harmful. Because it would potentially give the government the ability to claim those powers they’re trying to limit “For why declare that things shall not be done which there is no power to do?” Selective Incorporation - The bill of rights mostly applied just to the national government, and not to the state government. Until the 14th Amendment was passed, which limited the State governments. Slowly, over the course of years and many Supreme court decisions, Rights from the bill of rights were added to the 14th amendment, to limit the state governments as well as the national. Now, all but amendments III and VII have been incorporated. Though most states follow amendment VII requirements for jury trials anyways. Explain how the Supreme Court has interpreted freedom of religion through the establishment and free exercise clauses Amendment I Establishment Clause - “Congress shall make no law respecting an establishment of religion” 1. Could mean that the government can’t establish a church. 2. Could mean that the government can’t show preference to a certain religion. 3. Most people believe that it means that there is a separation between church and state, a wall between them. The question is how big is that wall? Free Exercise Clause - Government can’t interfere with people’s beliefs or religious practices. Including non-believers. Lemon Test - 3 pronged approach: 1) Is the Statute for secular purposes? 2) Does the effect neither advance nor inhibit religion? 3) Will this cause excessive entanglement between the government and religion? Explain how the Supreme Court has interpreted freedom of speech, assembly, petition, and the press Marketplace of Ideas - Freedom of Speech and Press allows for people to share their ideas and thoughts. This allows ideas to be challenged, and compete. This is generally protected from the government, a liberty. Political Speech - One of the most protected speech types. There needs to be diversity and the ability for people to point out the bad things the government is doing in order for there to be a successful democracy. Clear and Present Danger - 1st unprotected Speech. If the speech of the group or individual creates a clear and present danger for national security (soldiers movements in foreign lands, military plans, etc.) Then there is enough cause for the court to refuse freedom of speech in that situation. Hate Speech - This is also protected under Freedom of Speech, unless it turns to ‘Fighting Words.’ Fighting Words - 2nd unprotected speech. Speech that is insulting, likely to incite immediate violence, and adds no new information, ideas, or thoughts, is considered Fighting Words. Supreme Court Justice Oliver Wendell Holmes - “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Government v Private - Freedom of Speech is a civil liberty, not a civil right. So citizens are protected from the government restricting their speech, but it is not the government’s role to protect the citizen’s freedom of speech. In other words, you can still be fired for what you say, or banned from twitter, or whatever, as long as it’s a private organization and not the government. Student Speech - Students at private schools are protected somewhat (private schools are part of the government) but it is more restricted. Schools want to have an atmosphere that encourages socially acceptable behavior, and not advocate drugs. So students that go against those things will likely not be protected under freedom of speech. Commercial Speech - Newspaper and TV ads. Used to be completely out of bounds for being protected under freedom of the press, but a couple of supreme court decisions have protected certain aspects of news and TV citing Freedom of the Press. Symbolic Speech - Peaceful actions meant to send a message (Burning the American Flag). These are protected. Speech Plus - Speech combined with some sort of action (Picketing, leaflets, peaceful demonstration, etc). In Hague v. Committee for Industrial Organization supreme court declared that the government can’t prohibit speech-related activity in public areas, but they can impose rules to protect public safety as long as they don’t discriminate against a particular view point. If the demonstration is on private property however, the government has much more leeway in terms of regulations and restrictions, especially regarding the public's health, safety, and right’s of others. Prior Restraint - Regarding freedom of the press, except for very rare circumstances (Clear and Present Danger, Fighting Words, Libel, and Slander), the government can’t prevent newspapers from publishing whatever they want. Libel and Slander - Written speech that is made in “reckless disregard of the truth” and is considered damaging to the victim because it is “malicious, scandalous, and defamatory,” is considered Libel. If it is orally shared, it is Slander. This allows Politicians to protect against news and journalists just straight up lying. But, the courts have narrowed the definitions down so it is very difficult for a politician suing for Libel or Slander to be successful. In the New York Times Co. v. Sullivan case, the court held that it must be deliberately untrue with malicious intent in order to be considered Libelous. Because this is difficult to prove, newspapers can pretty much say whatever they want about a politician, to a degree. Obscenity and Pornography - Generally, porn and obscene speech or writing is protected under freedom of speech. Partially because the definitions are vague, and partially because adults simply have the liberty to consume this kind of media. There are some limitations though. The PROTECT act outlawed child porn. The most protection is for cable, not broadcast tv. Under this topic is violence and gore, generally, that is also protected under freedom of speech. Explain how the Supreme Court has interpreted the right to bear arms Amendment II Interpretation of 2nd 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.” 1) That the right of the people to keep and bear Arms is connected to a well regulated Militia, and is not meant on an individual level 2) That it is listing two things, a militia AND the right of the people to keep and bear Arms. That people have that right on an individual level as well. Supreme Court Decision - The Supreme Court has been pretty quiet on the 2nd amendment, up until the first court decision regarding the 2nd amendment in 2008. In 2010 a second ruling was made. Both support the liberty of citizens to own a gun for self defense: District of Columbia v. Heller > Ruled 5-4 that the 2nd Amendment provides a constitutional right to keep a loaded handgun at home for self-defense. McDonald v. Chicago > Court struck down an ordinance that would’ve made it extremely difficult to own a handgun within city limits in Chicago. Explain how the Supreme Court has interpreted the right to due process Amendment IV Search and Seizure - Search infringes on people’s privacy, while Seizing infringes on People’s right to person or property. In order for a police officer to do either, they must obtain a warrant based off of probable Cause. Exclusionary Rule - Any evidence obtained unconstitutionally is not admissible in court, even if the evidence clearly proves their guilt. Though Supreme courts since then have been a little more lenient by allowing federal courts to decide case by case depending on the “nature and quality of the intrusion.” Amendment V Grand Juries - People have the liberty, when being held to answer for capital or large crime, to a Grand Jury. The Jury decides whether or not there is enough evidence for a trial to be held. Though this part of the bill of Rights has not been included in the 14th amendment, so it is not required by the states. Most use Grand Juries, though some of them don’t. Double Jeopardy - A person can’t be tried for the same crime twice, the exception being a mistrial. Miranda Rule / Self-Incrimination - After a man confessed to the officers, he later said that he wasn’t aware of his rights, that he didn’t need to say anything. After this, the “Miranda Rights” were created. People have the liberty to not self-incriminate themselves. Amendment VI Right to Counsel - People have the right to a Counsel/Lawyer. Amendment VIII Cruel and Unusual Punishment - Judges are not able to inflict cruel and unusual punishment, including excessive bail. The debate is what is considered “cruel and unusual.” Capital Punishment - There are certain requirements in order for capital punishment to be inflicted. The supreme court ruled that capital punishment was too harsh for child rape, so it needs to be something pretty serious. Describe how the Supreme Court has identified and interpreted the right to privacy AKA - The Right to Privacy also known as ‘the right to be left alone.’ Eminent Domain - The power for government to take private property for public use. Taking’s Clause: “...nor shall private property be taken for public use, without just compensation.” If the government needs to take someone’s property for the good of the public, like tearing down a house to make room for a highway, for example, they must show a public purpose and provide fair payment. Birth Control - People have the liberty to be educated in birth control. Abortion Roe v Wade > Abortion became a liberty. The debate is now the restrictions of abortion. Parenthood of Southeastern Pennsylvania v. Casey > Roe v Wade was upheld, but narrowed the liberty by defining the right for abortion as a “limited or qualified” right subject to regulation by the states as long as the regulation does not constitute an “Undue Burden” Sexual Orientation Bowers v. Hardwick > Rule in favor of an anti-sodomy law. “the federal Constitution confers [no] fundamental right upon homosexuals to engage in sodomy.” Lawrence v. Texas > Overturned Bowers v Hardwick declaring that gay people are “entitled to respect for their private lives” and that “the State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”