Remember the ratification battle for the Constitution and the demand that Antifederalists had for "guarantees" of their liberties. This battle, of course, produced the Bill of Rights.
Bill of Rights - 1st ten amendment to the Constitution; protect civil liberties and civil rights
Civil liberties
freedom to think and act protected from government abuse
- regards personal actions in eyes of government
- protected from abuse; can be limited
Civil rights
right of fair and equal status/treatment for all people
- regards status as person in eyes of government
- right of fair treatment; much more difficult to limit
Civil liberties are the most litigated part of the Constitution. Since the Constitution is somewhat gray by nature, the openness to interpretation that many of the amendments exhibit leave it wide open to challenges over intent and application. The heart of these amendments are the liberties of the individual people. But what if they contradict? What if one person exercising their liberties interferes with another person exercising theirs? Or with the government attempting to carry out its responsibilities?
Where do your liberties end and mine begin?
This is why the study of civil liberties and civil rights is wrapped up in case law.
What does the 14th Amendment have to do with the Bill of Rights?
The 14th is how the Bill of Rights becomes applicable to the states. Prior to the 14th, they only apply to citizens of the United States, not the individual states.
Read 14th Amendment
- citizenship clause
- due process clause
- equal protection clause
Again, it is up to individuals to challenge institutions if they feel that their rights or liberties are being violated. Because of the 14th, the Bill of Rights has been applied to the states on a case-by-case basis. This is the process of selective incorporation.
(See Table 4-1 on p.125 to see the incorporation process.)
The most cherished and argued about Amendment to the Constitution is the 1st Amendment.
Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Religion:
The Constitution does not say anything about 'separation of church & state'. That phrase is taken from a writing of Jefferson in which he said that he believed that the 1st Amendment created "a wall of separation between Church and State". What the Constitution does say, and what the federal court system has been tasked with interpreting regarding religion is:
Congress shall make no law respecting an establishment of religion (establishment clause) nor prohibiting the free exercise thereof (free exercise clause)
Establishment clause:
Lynch v Donnelly
McCreary County v ACLU
Van Orden v Perry
Everson v Board of Education
Engel v Vitale
Lemon V Kurtzman
Wallace v Jaffree
Free exercise clause:
Reynolds v US
Minersville School District v Gobitis
WV State Board of Ed v Barnette
Wisconsin v Yoder
Speech & Press:
Congress cannot make a law abridging the freedom of speech or of the press. But, again, that is not absolute. There are limits. The Court has traditionally protected individuals from defamation by way of slander (spoken) and libel (print). The Court has also traditionally protected the government in its attempts to prevent treason and sedition.
Speech:
Schenck v US
Whitney v California
Brandenburg v Ohio
Press:
New York Times Co v Sullivan
Reno v ACLU
Near v Minnesota
New York Times Co v US
Symbolic Speech:
Tinker v Des Moines Independent Community School District
Texas v Johnson
Assembly & Petition:
Congress cannot abridge the right of the people peaceably to assemble. The people also have the right to petition their government for a redress of grievances. (Hence, all of those lobbyists people love to hate are legit)
DeJonge v Oregon
Edwards v South Carolina
NAACP v Alabama
Amendment II: 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
The Right to Bear Arms:
US v Miller
Heller v Washington DC
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
Protection Against Unreasonable Search & Seizure
- law enforcement must have a warrant or probable cause to search and/or seize
- "plain view" doctrine
- evidence obtained via a warrantless search is subject to the exclusionary rule
- electronic communications have been determined by the Court to be a person's "papers"
- civil liberties of students are even more limited
Search & Seizure:
Arizona v Hicks
Weeks v US
Mapp v Ohio
Olmstead v US
Katz v US
New Jersey v TLO
Board of Ed of Pottawatomie Co v Earls
Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
- Grand Jury cluase
- double jeopardy clause
- self-incrimination clause
- due process clause
- eminent domain clause
Due Process:
Federal government cannot deprive person of life, liberty, or property with the due process of law
substantive due process v procedural due process
procedural due process - correct procedures must be followed (can't make it up as you go)
substantive due process - the laws themselves must be fair
Due process can be denied if the state has a compelling case for it.
Mackey v Montrym
The 'Right to Privacy'
Like 'separation of church and state', this does not exist as text in the Constitution. However, the Court has upheld its belief that Americans have a right to privacy through their interpretation of the 4th, 5th, 9th, and 14th Amendments.
Olmstead v US
Griswold v Connecticut
Roe v Wade
Planned Parenthood v Casey
The Rights of the accused
Even is charged with an offense, the accused still have certain rights that are retained.
Miranda v Arizona
Gideon v Wainwright
Furman v Georgia
Gregg v Georgia
Finally, civil liberties terms that are good to know. What do these terms refer to in the context of civil liberties and the Courts interpretation/application thereof?
exclusionary rule
lemon test
clear & present danger test
bad tendency rule
(See Table 4-1 on p.125 to see the incorporation process.)
The most cherished and argued about Amendment to the Constitution is the 1st Amendment.
Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
Religion:
The Constitution does not say anything about 'separation of church & state'. That phrase is taken from a writing of Jefferson in which he said that he believed that the 1st Amendment created "a wall of separation between Church and State". What the Constitution does say, and what the federal court system has been tasked with interpreting regarding religion is:
Congress shall make no law respecting an establishment of religion (establishment clause) nor prohibiting the free exercise thereof (free exercise clause)
Establishment clause:
Lynch v Donnelly
McCreary County v ACLU
Van Orden v Perry
Everson v Board of Education
Engel v Vitale
Lemon V Kurtzman
Wallace v Jaffree
Free exercise clause:
Reynolds v US
Minersville School District v Gobitis
WV State Board of Ed v Barnette
Wisconsin v Yoder
Speech & Press:
Congress cannot make a law abridging the freedom of speech or of the press. But, again, that is not absolute. There are limits. The Court has traditionally protected individuals from defamation by way of slander (spoken) and libel (print). The Court has also traditionally protected the government in its attempts to prevent treason and sedition.
Speech:
Schenck v US
Whitney v California
Brandenburg v Ohio
Press:
New York Times Co v Sullivan
Reno v ACLU
Near v Minnesota
New York Times Co v US
Symbolic Speech:
Tinker v Des Moines Independent Community School District
Texas v Johnson
Assembly & Petition:
Congress cannot abridge the right of the people peaceably to assemble. The people also have the right to petition their government for a redress of grievances. (Hence, all of those lobbyists people love to hate are legit)
DeJonge v Oregon
Edwards v South Carolina
NAACP v Alabama
Amendment II: 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
The Right to Bear Arms:
US v Miller
Heller v Washington DC
Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
Protection Against Unreasonable Search & Seizure
- law enforcement must have a warrant or probable cause to search and/or seize
- "plain view" doctrine
- evidence obtained via a warrantless search is subject to the exclusionary rule
- electronic communications have been determined by the Court to be a person's "papers"
- civil liberties of students are even more limited
Search & Seizure:
Arizona v Hicks
Weeks v US
Mapp v Ohio
Olmstead v US
Katz v US
New Jersey v TLO
Board of Ed of Pottawatomie Co v Earls
Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation
- Grand Jury cluase
- double jeopardy clause
- self-incrimination clause
- due process clause
- eminent domain clause
Due Process:
Federal government cannot deprive person of life, liberty, or property with the due process of law
substantive due process v procedural due process
procedural due process - correct procedures must be followed (can't make it up as you go)
substantive due process - the laws themselves must be fair
Due process can be denied if the state has a compelling case for it.
Mackey v Montrym
The 'Right to Privacy'
Like 'separation of church and state', this does not exist as text in the Constitution. However, the Court has upheld its belief that Americans have a right to privacy through their interpretation of the 4th, 5th, 9th, and 14th Amendments.
Olmstead v US
Griswold v Connecticut
Roe v Wade
Planned Parenthood v Casey
The Rights of the accused
Even is charged with an offense, the accused still have certain rights that are retained.
Miranda v Arizona
Gideon v Wainwright
Furman v Georgia
Gregg v Georgia
Finally, civil liberties terms that are good to know. What do these terms refer to in the context of civil liberties and the Courts interpretation/application thereof?
exclusionary rule
lemon test
clear & present danger test
bad tendency rule
