Civil Liberties And Public Policy - PowerPoint Presentation

Slide1

Civil Liberties

And Public Policy

4

Slide2

Edwards

Learning Objectives

Trace the process by which the Bill of Rights has been applied to the states

Distinguish the two types of religious rights protected by the First Amendment and determine the boundaries of those rights

4.1

4.2

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Slide3

Differentiate the rights of free expression protected by the First Amendment and determine the boundaries of those rights

Describe the rights to assemble and associate protected by the First Amendment and their limitations

4.3

4

Edwards

Learning Objectives

4.4

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Describe the right to bear arms protected by the Second Amendment and its limitations

Characterize defendants

’

rights and identify issues that arise in their implementation

4.5

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4.6

Edwards

Learning Objectives

Slide5

Outline the evolution of a right to privacy and its application to the issue of abortion

Assess how civil liberties affect democratic government and how they both limit and expand the scope of government

4.7

4.8

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Edwards

Learning Objectives

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http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MEDIA_1/polisci/presidency/Seg2_CivilLiberties_v2.html

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Video: The Basics

Slide7

America

’s Population

Bill of Rights – Then and Now

Bill of Rights and the

States

At

first, most freedoms in the Bill of Rights applied only to the citizen

’

s relationship with the federal government. Now, however, through the process of incorporation, most of the Bill of Rights applies to the citizen

’

s relationship with state and local governments.

4.1

Slide8

Bill of Rights – Then and Now

Popular support

The Bill of Rights was added to the Constitution by popular demand. The abuses of the British government were still fresh in the minds of the colonists, and they did not want their new government to be able to arrest people without cause or jail newspaper editors because of what they published.

4.1

Slide9

TABLE 4.1: The Bill of Rights

4.1

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Bill of Rights – Then and Now

Popular support

Rights supported more in theory than practice

Civil liberties are not absolute

Limitations

Balanced against other values

Americans still wholeheartedly support the Bill of Rights in theory, but not so much in practice. People believe in freedom of speech in general, but oppose letting specific groups, such as the Ku Klux Klan, speak in their neighborhood. They are also willing to compromise liberty for security, as evidenced during the war on terrorism.

4.1

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Video: In Context

Slide12

The Bill of Rights and the States

First Amendment

Applied to federal government only

States had own bills of rights

Barron v. Baltimore

(1833)

Fourteenth Amendment

Gitlow

v. New York

(1925)

Due process clause

Incorporation doctrine

Not all rights incorporated

4.1

Make sure you

Slide13

Originally, the Bill of Rights applied to the federal government only. Note that the First Amendment reads,

“Congress shall make no law….” State constitutions had their own bills of rights, and Americans had a different view about what states and the federal government should be allowed to do.

In 1833, the Supreme Court, deciding the case of

Barron v. Baltimore

, gave the opinion that the Bill of Rights applied only to the federal government, not to cities and states.

This was the Court

’

s interpretation until 1925, when, in deciding the case of

Gitlow

v. New York

, the Court took a fresh look at the due process clause of the Fourteenth Amendment and ruled that states could not violate the freedom of speech protected by the First Amendment.

Gitlow

thus began the process of incorporation, or applying the Bill of Rights to the states, one right at a time. In other words, the Court did not issue a blanket ruling that the Bill of Rights in its entirety applied to the states; rather, it has incorporated rights one by one as appropriate cases have come before it.

Not all amendments have been incorporated. The Third, the Seventh, and parts of the Fifth and Eighth Amendments have not.

Slide14

The courts must resolve complex civil liberties issues. For example, is a display of the Ten Commandments on government property simply a recognition of their historic importance or an impermissible use of government power to establish religion?

The Ten Commandments

4.1

Slide15

TABLE 4.2: The Incorporation of the Bill of Rights

4.1

Slide16

Freedom of religion

Freedom of speech

Freedom of Assembly

Freedom from excessive bail

4.1

4.1

Which right was the first to be incorporated?

Slide17

4.1

Which right was the first to be incorporated?

Freedom of religion

Freedom of speech

Freedom of Assembly

Freedom from excessive bail

4.1

What court case incorporated Freedom of speech?

Slide18

Freedom of Religion

Establishment Clause

Free Exercise

Clause

4.1

Slide19

The First Amendment contains two provisions restricting government intrusion into religious beliefs.

The establishment clause states that “Congress shall make no law respecting an establishment of religion.” That is, the government could not make the Christian religion the official national religion or favor the practice of one religion over another.The free exercise clause prohibits the abridgment of citizens

’ freedom to worship, or, just as important, not to worship, as they please. Sometimes these two clauses conflict with one another and the Court must choose one over the other in deciding a case.

The interpretation of these two clauses has become an issue in partisan politics.

Slide20

Establishment Clause

Education

Religious Activities in Public Schools

School Prayer

Evolution

Public Displays

4.2

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Many nations have a national religion, and tolerance for the practice of other religions varies considerably. Since many of the colonists who came to America were fleeing religious persecution, it was especially important to them that the government not be able to establish a national religion.

Interpretation of this clause has been the subject of much debate. Some people argue that it means only that government cannot favor one religion over another. So, for example, school prayer would be okay, provided that the government did not favor one religion

’

s prayers over another.

Other people contend that this clause creates what Thomas Jefferson called a

“

wall of separation

”

between church and state. According to this interpretation, the government cannot support any religious activity. So, using our example, prayer of any kind would be prohibited in the public schools under this viewpoint.

Slide22

Establishment Clause

Education

Lemon v.

Kurtzman

(1971)

Aid to parochial schools

Lemon Test

Zelman v. Simmons-Harris

(2002)

Vouchers are constitutional

4.2

Slide23

Should federal aid money go to private parochial schools? What if most of those schools happen to be Catholic? Is that showing favoritism to the Catholic church? The Supreme Court considered the constitutionality of aid to parochial schools in the 1971 case

Lemon v. Kurtzman. The Court’s ruling in this case developed a three-part test, known as the

Lemon Test, to determine if aid is constitutional. The aid:

• must have a secular legislative purpose

• must have a primary effect that neither advances nor inhibits religion

• must not foster excessive government

“

entanglement

”

with

religion

This test has been applied in subsequent cases to many uses of public funds. Schools may, for example, use public funds for buildings, textbooks, and school lunches, but not for teachers

’

salaries. It is easy to determine if these things are secular but it is not possible to monitor an individual teacher’s work in the classroom of a religious school without

“

excessive entanglement.

”

Slide24

Establishment Clause

Religious Activities in Public Schools

Equal access for religious groups

Scholarships and instruction

School Prayer

Most controversial issue

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In a series of cases over the past thirty years, the Supreme Court has ruled that public schools and universities that permit student groups to use their facilities or rent them out must provide equal access to religious groups. They also must fund religious student magazines if they provide funds for secular ones

.

Other cases have concerned the use of state scholarship money for a theology degree and the posting of the Ten Commandments on public school property, both of which the Court prohibited. Instructors can

’t come onto public school property to give religious instruction during the school day, but students can be released from classes to attend religious instruction elsewhere

. The most controversial issue related to public schools and religion is school prayer. Since the 1960s, the Court has consistently ruled that the recitation of prayers or Bible passages in public schools violates the establishment clause. Individuals, of course, may pray on their own, but the school can

’t encourage prayer in any way, such as by reserving time for it or having students lead prayers at games and ceremonies.

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School Prayer

4.2

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Establishment Clause

Evolution

Creationism

Trying again with

“

intelligent design

”

Public Displays

Advancing religion v. legitimate historical purpose

Holiday decorations

4.2

Slide28

Fundamentalist and evangelical Christians have tried to oust the teaching of evolution from public school science classrooms and replace it with the religious doctrine of creationism. The Court has consistently overturned state laws requiring teachers to teach creationism or prohibiting the teaching of evolution

.

Recently

, proponents of creationism have renamed the doctrine “intelligent design,”

and have denied that it has religious implications. Lower courts have ruled, however, that intelligent design does have religious implications and therefore doesn’t belong in a public school classroom.

Public displays of religious symbols have also been the subject of a number of establishment clause cases. In general, the Court has ruled that such symbols are forbidden if they’

re posted to put forward religion, but permitted if they serve a legitimate historical purpose

.

Holiday

decorations—such as menorahs and nativity scenes—on public property have also been the subject of Court cases. The Court

’

s rulings have been inconsistent here, allowing some displays but not others, depending upon context.

Slide29

Free Exercise Clause

Belief versus practice

Not all practices protected

The free exercise clause pertains to the right of individuals to practice the religion of their choice. When religious practices violate societal norms and laws, the issue of free exercise comes before the courts.

4.2

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Muhammad Ali

4.2

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Free Exercise Clause

Belief versus practice

Cannot violate rights of others

Example case of the Amish

Discrimination in employment

Strict scrutiny

Compelling state interest

Narrowly tailored

4.2

Slide32

People have the right to believe whatever they want, but that doesn’t give them the right to put their beliefs into practice if they violate certain laws or the rights of others. For example, the free exercise clause doesn’

t protect your right to kill someone if your religious beliefs dictate human sacrifice. But most issues before the Supreme Court are more subtle.

For

example, children are required to attend school until at least the age of 16 so that they don’t become an unemployable burden to the state. The Court has granted the Amish permission to remove their children from school after eighth grade, in accordance with their religion’s prohibition on education beyond the elementary level.

This

seems to be a violation of the establishment clause, as it favors the Amish over other religions, but the Court, in this case, had to balance establishment and free exercise rights and ruled in favor of free exercise, arguing that, since the Amish remain with their families in isolated communities, the undereducated would not become a burden to the state

.

Religious

groups are not subject to employment discrimination laws, although religious schools that discriminate on the basis of race are denied tax-exempt status

.

Laws

that have the effect of restricting religious practices are subject to strict scrutiny. They must show a compelling state interest in restricting the activity and be narrowly tailored to use the least restrictive means possible to achieve the state

’

s secular purpose

.

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4.2

Which of the following is not part of the Lemon test?

A law must neither advance nor inhibit religion.

A law must not foster government entanglement with religion.

A law must not impose costs on religious organizations.

A law must have a secular legislative purpose.

4.2

Slide34

A law must neither advance nor inhibit religion.

A law must not foster government entanglement with religion.

A law must not impose costs on religious organizations.

A law must have a secular legislative purpose.

4.2

4.2

Which of the following is not part of the

Lemon

test?

Slide35

Freedom of Expression

Prior Restraint

Free Speech and Public Order

Obscenity

Libel and Slander

Symbolic Speech

Free Press and Fair Trials

Commercial Speech

Regulation of the Public Airwaves

Campaigning

4.3

Slide36

We

’ve just learned that freedom of conscience in the United States is absolute. Americans can believe whatever they want, and are only limited in how they put their beliefs into practice. Just as freedom to practice one’s beliefs is limited, so is the freedom to express them. Most forms of speech are permissible, but the Courts have defined certain forms of speech as exempt from Constitutional protection. To paraphrase Supreme Court Justice Oliver Wendell Holmes, you can’t shout

“fire”

in a crowded theater. In this section we will explore forms of speech that aren

’t protected by the First Amendment right to free expression.

Slide37

Prior Restraint

Near v. Minnesota

(1931)

Unconstitutional censorship

Does not apply to students

Exception for national security

4.3

Slide38

Prior restraint is another term for censorship. Prior restraint occurs when a government forbids the publication of material in advance, rather than ruling on its legality afterward.

In the case of

Near v. Minnesota

in 1931, the Court ruled prior restraint unconstitutional. In 1988, the Court exempted public school newspapers from this rule, arguing that they weren

’t public forums and could be regulated by school officials.

The Court has allowed prior restraint in wartime or whenever national security is at stake, but is careful to limit this exception to cases where there

’

s a legitimate national security risk. In the infamous Pentagon Papers case, the government tried, and failed, to stop the publication of embarrassing documents about the Vietnam War. The Court ruled that the documents were historical and did not pose a threat to national security.

Slide39

Free Speech and Public Order

Schenck v. United States

(1919)

Wartime trade-offs

“

Clear and present danger

”

standard

Dangerous or merely inconvenient?

Anticommunism

Smith Act (1940) prosecutions

4.3

Slide40

The

Court has been sympathetic to limits on free speech during wartime in the name of national security. Such limits are set for the sake of preserving public order and preventing people who are opposed to the war from hindering the war effort.

In the case of Schenck

v. United States, in 1919, the Court upheld the conviction of Charles Schenck for distributing leaflets urging men to resist the draft. Chief Justice Holmes stated that speech that poses a

“clear and present danger” wasn’t protected by the First Amendment. The difficulty with this standard is how to define “danger.” In this case, it couldn

’t be argued that the leaflets posed a tangible danger. They were really just an inconvenience to the government.

During

the Cold War, anticommunist sentiment was especially fervent, and the federal government sought to prosecute anyone connected with the Communist Party. They used the Smith Act, which forbade advocating the violent overthrow of the government, to prosecute party leaders even in the absence of evidence that they were urging people to commit violence.

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Senator Joseph McCarthy

4.3

Slide42

Free Speech and Public Order

“

Imminent lawless violence

”

standard

Brandenburg v. Ohio (1969)

4.3

Slide43

As we

’ve discussed, the Court allowed the prosecution of people who were accused of being communists. In later years, as in the case of Brandenburg, the Court narrowed its interpretation, finding that it’s permissible to advocate the violent overthrow of the government in the abstract as long as doing so does not incite anyone to

“imminent lawless violence.”

Slide44

Obscenity

Roth v. United States

(1957)

Obscenity not constitutionally protected

But what is obscene?

Miller v. California

(1973)

Appeals to prurient interest

Patently offensive

Lacking serious literary or artistic value

Average people/local standards

Regulating adult content

4.3

Slide45

The Supreme Court ruled in Roth v. United States that obscenity is not constitutionally protected, but defining what is obscene has proven elusive. Standards vary from place to place and from time to time. A group of citizens couldn’

t look at the same book or movie or painting and agree on whether it was great art or obscenity.

In

Miller v. California, the Court attempted to clarify its obscenity doctrine. Materials were obscene if they:

appealed to a “prurient interest”

showed

“

patently offensive

”

sexual conduct

or lacked

“

serious literary,

artistic, political, or scientific value.

”

The

Court held the view that juries of ordinary people should be the ones to decide what is obscene, based on local standards.

Just

because obscenity lacks constitutional protection, it doesn

’

t follow that most Americans want all obscene material to be banned from availability to consenting adults. The public supports restricting the availability of pornographic materials to minors, and the courts have upheld such restrictions. The problem is that advances in technology make it more difficult to prevent access to minors while allowing it for adults.

Slide46

Violent video game

4.3

Slide47

In 2011, the Court ruled that a California law banning the sale or rental of violent video games to minors violated the First Amendment because the games communicate ideas. Depictions of violence have never been subject to regulation the same way obscene materials have. Should they be?

Slide48

Libel and Slander

Defamation

Libel = written

Slander = spoken

Standards for conviction high

Public figures

New York Times v. Sullivan (1964)

Intentionally malicious

Private individuals

Defamatory falsehood

Negligence

4.3

Slide49

Malicious false statements that damage a person

’s reputation aren’t protected speech. Written defamation is called libel. Spoken defamation is called slander. Both offenses can be prosecuted, but the standards for conviction are high.

Imagine if politicians could collect damages every time something untrue was said about them. Free expression would grind to a halt as everyone worried about getting their facts wrong and accidentally saying something that wasn

’

t 100% accurate in every particular. In New York Times v. Sullivan, the Court ruled that statements about public figures are only libelous if the speaker knew they were untrue and had the malicious intent to harm the person by making them. Such cases are hard to win because malicious intent is difficult to prove.

For private individuals, the standards are a bit lower. The victim need only prove that the defamation was false and that the author was negligent in making it.

Slide50

Symbolic Speech

Examples of symbolic speech

Wearing an armband

Burning the U.S. flag

Marching in a parade

Limitations

Burning draft cards

Threats

4.3

Slide51

Symbolic

speech is action that expresses an opinion. The Supreme Court has ruled that symbolic speech is protected by the First Amendment in the same way as spoken or written speech. One famous decision in favor of symbolic speech included the Court’s ruling that students had the right to wear black armbands to protest the Vietnam War. Other decisions ruled that state laws prohibiting flag burning are unconstitutional, and that organizers of a parade are free to exclude groups, such as gays and lesbians, from participating because a parade is a form of protected speech

.

Just

as other forms of free speech aren’t absolute, neither is symbolic speech. The Court ruled that burning of draft cards wasn’t permissible because it interfered with the exercise of the draft. Also, when certain forms of symbolic expression—such as cross burning to intimidate minorities—go over the line from speech to threats, they’re no longer protected.

Slide52

Free Press and Fair Trials

Can press coverage compromise the right to a fair trial?

Courts have not upheld restrictions

Trials are public

Sequestering juries

Zurcher v. Stanford Daily

(1978)

Journalists cannot withhold evidence

Subject to search warrants

4.3

Slide53

Defendants

in court cases sometimes argue that negative press coverage of their case threatens their right to a fair trial. And there’s certainly evidence that the opinions of the public as to the guilt or innocence of the accused are shaped by the media. But the Court has been largely unsympathetic to these claims, preferring to keep information—and trials themselves—open to the public.

The

alternative to gagging the press has been to sequester juries to prevent their exposure to influence from the media. Sequestered juries stay under guard in hotels, and are kept away from newspapers, television, the Internet, and other forms of mass communication

. The Court has also been unsympathetic to arguments by the press that they have a right to withhold evidence from confidential sources. In

Zurcher v. Stanford Daily, the Supreme Court ruled that newspapers are subject to search warrants the same as anyone else.

Slide54

Commercial Speech and Regulation of the Public Airwaves

Advertising

Federal Trade Commission (FTC)

No false claims

Prohibitions on advertising legal services

Federal Communications Commission (FCC)

Licensing and regulations

Not applicable to cable and satellite

4.3

Slide55

Commercial

speech, such as advertising, is regulated by the FTC. This agency decides what goods can be advertised where, and determines the limits of the content. Advertisers can’t make false claims about what their products can do, but they have a lot of leeway in what’s implied by the advertisement. The courts have struck down state laws preventing advertising of goods and services such as casino gambling that are legal in the state

.

Because

only a limited number of broadcast frequencies are available, radio and television stations are subject to licensing requirements and regulations that would be considered unconstitutional if applied to print media. Unlike

newspapers, stations must devote broadcast time to public service, news, and views other than those of the station’s owners. They are prohibited from using obscene words, and subject to large fines for allowing the broadcast of even one stray curse word. These restrictions don

’

t apply to cable and satellite channels, since consumers pay for their specific content and can block content that they don

’

t want entering their homes.

Slide56

Howard Stern

4.3

Slide57

Campaigning

Election Campaign Act of 1971

Buckley v. Valeo

(1976)

Spending money to influence elections is protected speech

McCain-Feingold Act (2002)

Banned soft money contributions

Banned certain advertising

Citizens United v. Federal Election Commission

(2010)

4.3

Slide58

The limits of the use of money in political campaigns have been tested on free speech grounds. In 1971, Congress attempted to limit the influence of money by passing the Election Campaign Act which, among other things, limited campaign contributions to candidates. In 1976, in the case of

Buckley v. Valeo, the Supreme Court invalidated parts of this law, arguing that spending money to influence elections is a form of protected speech.

In 2002, Congress again made a small attempt at campaign finance reform with the Bipartisan Campaign Reform Act, more popularly known as the McCain-Feingold Act. This law banned soft money contributions to parties, limited third party advertising, and restricted parties

’

use of funds on behalf of candidates.

The Supreme Court upheld parts of the law but limited the restrictions on advertising. In 2010, it went further in its ruling in the

Citizens United

case, prohibiting restrictions on political broadcasts funded by third parties such as corporations.

Slide59

4.3

What is the current standard for constitutionally protected speech?

The

“imminent lawless violence

” standardThe

“I know it when I see it”

standard

The

“

clear and present danger

”

standard

None of the above

4.3

Slide60

The

“imminent lawless violence

” standard

The

“I know it when I see it” standard

The

“

clear and present danger

”

standard

None of the above

4.3

4.3

What is the current standard for constitutionally protected speech?

Slide61

Freedom of Assembly

Right to Assemble

Right to

Associate

Freedom to assemble is often overlooked. Freedoms of speech and of the press, not to mention religion, are usually debated more often. But freedom of assembly is the basis for forming interest groups, as well as exercising speech rights to petition the government and protest for redress of grievances.

4.4

Slide62

Right to Assemble

Gathering to make a statement

Conflict with public order

Time, place, manner restrictions

No viewpoint discrimination

Fine line with harassment

Abortion providers

4.4

Slide63

The Constitution guarantees the right of citizens to gather together to make a statement but, like other rights, it isn

’t absolute. The Court has ruled that, although citizens can’t be prohibited from parading, picketing, and protesting, laws may limit the time, place, and manner of such gatherings.

Laws may require demonstrators to obtain a permit and post a bond for security. Local governments must grant permits irrespective of the content of the group

’

s message. Demonstrators must stay on public property and can be limited as to distance, volume, and other features of their protest to avoid harassing law-abiding citizens. For example, the Court has upheld the constitutionality of laws that limit how close anti-abortion protestors can be to clinic entrances, and prohibited them from protesting in residential neighborhoods.

Slide64

Ku Klux Klan

4.4

Slide65

Right to Associate

NAACP v. Alabama

(1958)

Membership lists protected

Military recruiters

Public schools cannot prohibit them

4.4

Slide66

The right to associate with like-minded people is constitutionally protected. When a group is interested in political change, government is sometimes curious to get its hands on group membership lists. In 1958, the Court ruled that Alabama had no right to force the NAACP to turn over its membership list.

In 2006, the Court forbade college campuses from prohibiting military recruiters, mentioning that faculty and staff are free to exercise their free speech rights to disagree with the military

’

s message.

Slide67

4.4

What sort of restrictions can be placed on freedom of assembly?4.4

Time

Place

Manner

All of the above

Slide68

Time

Place

Manner

All of the above

4.4

4.4

What sort of restrictions can be placed on freedom of assembly?

Slide69

Right to Bear Arms

Controversial right

Subject to national, state, and local restrictions

National Rifle Association (NRA)

State militias or individuals?

District of Columbia v. Heller

(2008)

McDonald v. Chicago

(2010)

4.5

Slide70

The Second Amendment right to bear arms is one of the most controversial constitutional rights. Opponents of gun control, represented by one of the most powerful interest groups, the NRA, argue that virtually every national, state, or local gun law is unconstitutional. Proponents argue that the Second Amendment is meant to apply to the right of states to create militias, not the right of individual citizens to arm themselves to the teeth.

The Supreme Court has rarely dealt with Second Amendment cases but has recently ruled to incorporate the Second Amendment by overturning state and local gun control laws on Second Amendment grounds. In

District of Columbia v. Heller

, and subsequently in

McDonald v. Chicago, the Court ruled that the right to bear arms isn’t connected to service in a militia and that laws that limit an individual’

s ability to use a firearm for self-defense are unconstitutional.

Slide71

Gun show

4.5

Slide72

4.5

When was the Second Amendment incorporated?

2010

1791

1868

2008

4.5

Slide73

2010

1791

1868

2008

4.5

4.5

When was the Second Amendment incorporated?

Slide74

Defendants

’ Rights

Searches and Seizures

Self-Incrimination

Right to Counsel

Trials

Cruel and Unusual Punishment

4.6

Slide75

Persons accused of crimes in the United States enjoy a range of constitutional protections to prevent the abuse of government power. If you

’re accused of a crime in the U.S., you’re protected from unreasonable and unwarranted search and seizure of your person and property. Illegally obtained evidence can’

t be used against you, and you’re not required to be a witness against yourself. You have the right to legal counsel to represent you, and the right to a speedy and public trial by a jury of your peers.

You are also protected against cruel and unusual punishment, although be warned that the death penalty is considered neither cruel nor unusual, except in special circumstances.

Slide76

FIGURE 4.1: The constitution and the Stages of the Criminal Justice System

4.6

Slide77

Searches and Seizures

Fourth Amendment

Probable cause

Search warrants

Various cases, lots of exceptions

Exclusionary rule

Mapp v. Ohio

(1961)

War on terrorism

USA Patriot Act (2001)

4.6

Slide78

The Fourth Amendment provides protection against unreasonable searches and seizures. In practice, this means that the authorities must have a good reason to suspect a crime in order to ask a judge for a warrant to search a person or place. In practice, the circumstances of apprehending criminals have led to the Court upholding warrantless searches in various cases, and making lots of exceptions to the need for a warrant.

The exclusionary rule prevents the use of illegally obtained evidence, extended to the states in the 1961 case of

Mapp

v. Ohio

. However, the courts have recently upheld many exceptions, such as when the evidence could have been obtained by legal means or the police didn’t realize the seizure was improper. There is widespread public support for preventing criminals from going free on a “

technicality.”

In the immediate aftermath of the 9/11 terrorist attacks, Congress passed the USA Patriot Act, a law that gives the government new powers of surveillance to root out terrorists and prevent the planning and execution of terrorist attacks. Provisions of this law—such as wiretapping without a warrant—have been challenged as unconstitutional, but the Court has upheld them in the interest of national security so far.

Slide79

Self-Incrimination

Fifth Amendment

Burden of proof on prosecution

Miranda v. Arizona

(1966)

Right to remain silent

Knowledge that what you say can be used against you

Right to an attorney present during questioning

Right to have an attorney provided if you cannot afford one

4.6

Slide80

The Fifth Amendment protection against self-incrimination means that the burden of proof is on the prosecution. If you are accused of a crime, you cannot be compelled to testify against yourself, nor are you required to proclaim your innocence. You are innocent until the state proves that you

’re guilty, without your assistance in that endeavor.

It

’

s possible, indeed likely, that someone who’s arrested may say something incriminating under interrogation, without being aware of the constitutional right to remain silent, to have an attorney present during questioning, and to be provided with an attorney if he or she cannot afford one. In the 1966 case of Miranda v. Arizona, the Supreme Court ruled that arresting officers must inform accused persons of these rights.

Slide81

4.6

Criminal rights

Slide82

Right to Counsel and Trials

Sixth Amendment right to attorney

Gideon v. Wainwright

(1963)

State must provide attorney for indigent

Habeas corpus

Not held without charge

Speedy and public trial by impartial

jury

War on terrorism

4.6

Slide83

The Sixth Amendment guarantees the right to counsel in federal courts. But most trials happen in state courts and most defendants cannot afford an attorney. It was not until 1932 that this right was incorporated, and the state required to pay for an attorney for the indigent, and then only for capital crimes. In 1963, in the famous case of

Gideon v. Wainwright, the Court extended this right to anyone accused of a felony. Later rulings have extended it to almost any crime in which imprisonment could be imposed.

The Sixth Amendment also guarantees the right of the accused to be informed of the charges against them. That is, they cannot be detained indefinitely without charge.

The Sixth Amendment also guarantees the right to a speedy and public trial, with an impartial jury of one

’

s peers.

The war on terrorism has changed some of these rules. The FBI has detained people considered threats to security.

Slide84

Guantánamo Bay prisoners

4.6

Slide85

Right to Counsel and Trials

Plea

bargaining

Jury size of 12 traditional

Conviction must be unanimous

4.6

Slide86

Trials receive a lot of media coverage, and our image of the justice system is based on the adversarial process of a trial. But the reality is that fewer than 10% of criminal cases go to trial. That

’s because 90% of defendants plead guilty and engage in a process called plea bargaining. The defendant pleads guilty in exchange for a reduced sentence or lesser charges. Plea bargaining is a practical necessity; it saves the state time and money. Imagine if the 300,000 cases that go to trial ballooned to ten times that number. A speedy trial would be impossible and the cost of defending the accused would be too high.

When cases do go to trial, defendants have the right to an impartial jury that is not racially biased. The number of jurors is set at 12 by tradition, and conviction usually must be unanimous.

Defendants also have the right to confront witnesses and to be informed of evidence that may exonerate them.

Slide87

Cruel and Unusual Punishment

Eighth Amendment

Not defined

Incorporated in 1962

Prison overcrowding

Gregg v. Georgia (1976)

Death penalty not cruel and unusual

McCleskey

v. Kemp

(1987)

4.6

Slide88

The Constitution forbids cruel and unusual punishment, but it does not define it. It

’s up to the sensibilities of the age. The Supreme Court has ruled that overcrowded prison conditions can constitute cruel and unusual punishment, as is a sentence of life in prison for a juvenile offender. The Court has not ruled that the death penalty is in itself cruel and unusual punishment, but has upheld restrictions on its use, such as barring the execution of the mentally ill, the mentally retarded, and juveniles.

In

McCleskey

v. Kemp, the Court rejected the argument that the death penalty violates the equal protection clause of the Fourteenth Amendment just because minority offenders and crimes involving white victims are more likely to result in a death sentence.

In recent cases, the Court has upheld the use of lethal injection as a method of execution, and made it more difficult for death row inmates to appeal their sentences.

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4.6

Video: In the Real World

Slide90

FIGURE 4.2: Decline of executions

4.6

Slide91

Fourth

Sixth

Fifth

Eighth

4.6

4.6

What amendment protects against self-incrimination?

Slide92

4.6

4.6

What amendment protects against self-incrimination?

Fourth

Sixth

Fifth

Eighth

Slide93

Right to Privacy

Is There a Right to Privacy

Controversy over Abortion

4.7

Slide94

The Framers of the Constitution were far-sighted in anticipating the needs of the growing republic, but they could not have imagined today

’s controversies concerning wiretapping, surrogate motherhood, abortion, or Internet pornography. These issues hinge on a supposed right to privacy that is inferred from other constitutional rights.

Slide95

Is There a Right to Privacy?

How privacy is implied in Constitution

Religion: Right to exercise private beliefs

Search and seizure: Right to privacy in your home

Right to be left alone

Griswold v. Connecticut

(1965)

Court states right to privacy implied

4.7

Slide96

The word

“privacy” is never mentioned in the Constitution, but it is clearly implied by other rights. The right to freedom of religion implies a right to exercise private beliefs. The prohibition against unreasonable searches and seizures implies an expectation of privacy at home, as does the prohibition against seizing private property without due process. At its heart, privacy is the right to be left alone.

The Supreme Court first articulated the idea of an implied right to privacy in the Constitution in the case of

Griswold v. Connecticut

in 1965. This case concerned a Connecticut law prohibiting the use of birth control by married couples. The Court argued that the rights in the Constitution implied a right to privacy that extended to the behavior of married couples in the privacy of their bedrooms. Opponents argued that the Court was inventing constitutional rights that didn’

t exist.

Slide97

Controversy over Abortion

Roe v. Wade

(1973)

Prohibits state bans on abortion

Balancing test

State interest in protecting women

’

s health

State interest in protecting prenatal life

Planned Parenthood v. Casey

(1992)

From

“

strict scrutiny

”

to

“

undue burden

”

4.7

Slide98

One of the most famous and controversial cases in Supreme Court history concerns the application of the implied right to privacy to the issue of abortion. In 1973, in the case of Roe v. Wade, the Court ruled that the right to privacy protects a woman’

s decision to terminate a pregnancy but that this right is not absolute.

The

Court found that the state has a legitimate interest in protecting women’s health and prenatal life, so as a pregnancy progresses and the fetus becomes more viable, states can enact increasingly stringent restrictions on abortion.

Abortion

is common; 22% of all pregnancies end in abortion, and more than a million abortions are performed each year. However, the procedure remains controversial and is always on the political agenda.

The

Court

’

s 1992 decision in

Planned Parenthood v. Casey

made it easier for states to place restrictions on abortion services by stating that such restrictions were unconstitutional only if they placed an

“

undue burden

”

on a woman seeking an abortion.

Slide99

4.7

Anti-abortion protests

Slide100

4.7

FIGURE 4.3: The Abortion Debate

Slide101

4.7

What famous Supreme Court case prevented states from outlawing abortion?

4.7

Planned Parenthood v. Casey

Roe v. Wade

Griswold v. Connecticut

None of the above

Slide102

Planned Parenthood v. Casey

Roe v. Wade

Griswold v. Connecticut

None of the above

4.7

4.7

What famous Supreme Court case prevented states from outlawing abortion?

Slide103

Understanding Civil Liberties

Civil Liberties and Democracy

Civil Liberties and the Scope of Government

4.8

Slide104

The government of the United States is democratic, meaning that it

‘s run by officials who are elected by the people and empowered by them to make decisions. These officials are accountable to the people through the democratic process.

But the government is also constitutional, meaning a fundamental law limits what the people can empower the government to do through their elected officials.

The Constitution prevents a democratic majority from deciding to restrict the civil liberties of minorities.

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Video: Thinking Like a Political Scientist

4.8

Slide106

Civil Liberties and Democracy

Democracy depends upon freedom of expression

Need information to make decisions

Majority rule versus minority rights

Elites have protected minorities

4.8

Slide107

First Amendment freedoms of speech, press, and assembly are essential to the functioning of a democratic regime. Without access to information, citizens cannot make intelligent decisions.

Fundamental protections for civil liberties prevent democratic majorities from restricting the rights of minorities. Certain rights, such as the rights of the accused, sometimes make it more difficult to punish criminals and can create the appearance of protecting the rights of criminals at the expense of society.

The Supreme Court is not directly democratically accountable, which has enabled it to afford increasing protection for civil liberties even when those protections did not coincide with the popular will of the time.

Slide108

Civil Liberties and the Scope of Government

Liberty and individualism prevail

Can

’

t hide from vast government

Technology enables more intrusion

Irony that more government is needed to provide more protection

4.8

Slide109

The American cultural values of respect for liberty and individualism are displayed in the civil liberties protections in the Constitution.

As the government has grown to provide more services, and as technology has progressed, it

’

s becoming increasingly difficult to hide from the police, the FBI, or the IRS. The size and scope of government power today make civil liberties protections more important than ever. So there

’s a certain irony in the need for more government to provide more protection, as when police protect people with unpopular viewpoints, or defendants who can’t afford lawyers get them at government expense.

Slide110

4.8

How does the Constitution limit democratic rule?

By preventing a minority from passing unpopular laws

By preventing the majority from restricting minority rights

By preventing a minority from overruling the majority

All of the above

4.8

Slide111

By preventing a minority from passing unpopular laws

By preventing the majority from restricting minority rights

By preventing a minority from overruling the majority

All of the above

4.8

4.8

How does the Constitution limit democratic rule?

Slide112

What rights do accused persons enjoy? Where are protections for these rights found in the Constitution?

Discussion Question

4

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4

Video: So What?

Slide114

4

Further Review: On My PolisciLab

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