Civil Liberties - Richmond County School System



Civil Liberties Assignment

A. All key terms

Create diagrams, graphic organizers, or outlines that display your understanding of:

B. The USA Patriot Act: Assess and Analyze

C. Why was there a need for the Bill of Rights?

D. Make arguments for and against adding a Bill of Rights to the Constitutions.

E. How did the Bill of Rights come to apply to the states?

F. The incorporation of the Bill of Rights into the Fourteenth Amendment (including specific court cases)

G. Explain the Establishment Clause as it relates to the following: (freedom of religion, church-related schools, school vouchers, school prayer, the Ten Commandments, Teaching of Evolution, religious speech, etc)

H. The Free Exercise Clause

I. Freedom of Expression

J. Freedom of the Press

K. The Right to Assemble and to Petition the Government

L. Matters of Privacy

M. The Rights of the Accused versus the Rights of Society

N. Pros/Cons: Death Penalty

CHAPTER OUTLINE

I. THE BILL OF RIGHTS

The Bill of Rights comes from the colonists’ fear of a tyrannical government. Recognizing this fear, the Federalists agreed to amend the Constitution to include a Bill of Rights after the Constitution was ratified. The Bill of Rights places limitations on the government, thus protecting citizens’ civil liberties.

a. Extending the Bill of Rights to State Governments. As we have seen, federalism divides power between the national government and the state governments. While the Bill of Rights protected the people from the national government it did not protect the people from state governments. In 1868 the Fourteenth Amendment became a part of the Constitution. While this amendment did not mention the Bill of Rights, it would be interpreted to impose, provision-by-provision, most of the constitutional protections of civil liberties upon state governments during the twentieth century.

b. Incorporation of the Fourteenth Amendment. Beginning in 1925 the United States Supreme Court began to apply specific rights stated in the Bill of Rights to state governments. Table 4-1 in the text lists the incorporation of the specific rights. However, not all of the rights have been applied to state governments at this time (e.g., the Second Amendment).

II. Freedom of Religion

The First Amendment addresses the issue of religion from two different venues: (1) “Congress shall make no law respecting an establishment of religion,” and (2) “. . . or prohibiting the free exercise thereof . . .” Congress is prohibited from passing laws that establish governmental involvement in religion, and Congress is prohibited from passing laws that deny people the right to practice their religious beliefs.

a. The Separation of Church and State—The Establishment Clause.

i. Aid to Church-Related Schools. In general, such aid is prohibited by the establishment clause.

ii. A Change in the Court’s Position. Recently, however, in limited cases, the Supreme Court has permitted aid that goes to all schools, religious or public.

iii. School Vouchers. A current controversy in this area involves whether school vouchers can be used to attend religious schools. Some states’ attempts at education reform include granting student vouchers that can be used at any public or private school, including religious schools. The Supreme Court has ruled that this is permissible, since it is the parents, not the state, that is choosing to subsidize the religious school.

iv. The Issue of School Prayer—Engel v. Vitale. The Supreme Court ruled that officially sponsored prayer in schools violates the establishment clause.

v. The Debate over School Prayer Continues. However, the court has allowed school districts to have a moment of silence when such an event was conducted as a secular rather than religious occasion.

vi. Prayer outside the Classroom. The Supreme Court has ruled that students in public schools cannot use a school’s public address system to pray at sporting events. In spite of this, students in some districts (especially in the South) deliberately violate the ruling, or use radio broadcasts to circumvent the Court’s decision.

vii. The Ten Commandments. The Supreme Court has split on the display of the Ten Commandments, allowing it as part of larger display on the grounds of the Texas state capitol, but disallowing it as an overtly religious display in Kentucky courthouses.

viii. Forbidding the Teaching of Evolution. The courts have interpreted the establishment clause to mean that no state can ban the teaching of evolution or require the teaching of “creationism.”

ix. Religious Speech. Public schools and colleges cannot place restrictions on religious organizations that are not also placed on nonreligious ones. In Rosenberger, the Supreme Court ruled that it was not constitutional for the University of Virginia to provide support to most student organizations but to exclude a religious student organization.

b. The Free Exercise Clause. The free exercise clause guarantees the free exercise of religion. However the Supreme Court has allowed for some restraint here when religious practices interfere with public policy. Examples of this include the ability of school districts to select texts for students, and the requirement of vaccinations for school enrollment.

i. The Religious Freedom Restoration Act. Passed by Congress in 1993, the act required all levels of government to “accommodate religious conduct” unless there was a compelling reason to do otherwise. In 1997, the Supreme Court ruled the act unconstitutional.

ii. Free Exercise in the Public Schools. Under the No Child Left Behind act of 2002, schools can be denied federal funds if they ban constitutionally acceptable expressions of religion.

III. Freedom of Expression

The First Amendment protects most speech, but some speech either falls outside the protection of the First Amendment or has only limited protection.

a. No Prior Restraint. This is, in effect, censorship. Only in the most extraordinary of circumstances has the government been allowed to completely prevent the press from printing. If the publication violates a law, the law can be invoked only after publication.

b. The Protection of Symbolic Speech. Signs, gestures and articles of clothing that convey meaning are constitutionally protected speech. One of the most controversial types of symbolic speech is the act of burning the American flag.

c. The Protection of Commercial Speech. Advertisements have limited First Amendment protection. Restrictions must directly meet a substantial government interest and go no further than necessary to meet the objective. Advertisers can be liable for factual inaccuracies in ways that do not apply to noncommercial speech.

d. Permitted Restrictions on Expression.

i. Clear and Present Danger. During the 20th century, the Supreme Court has allowed laws that restrict speech that allegedly would cause harm to the public. The restrictions were principally imposed on advocates of revolutionary or “dangerous” ideas. The original test, established in 1919, was the clear and present danger test.

ii. Modifications to the Clear and Present Danger Rule. In 1925, the government received great power to restrict speech through the Court’s enunciation of the bad tendency rule. In 1951, however, the Court introduced the grave and probable danger rule, which was somewhat harder for the government to meet. The current rule, established in 1969, is the incitement test. This test allows restrictions on speech only when the speech is an immediate incitement to illegal action, a standard that provides protection to a significant amount of controversial speech.

e. Unprotected Speech: Obscenity

i. Definitional Problems. The current definition stems from 1973. Material is obscene if 1) the average person finds it violates community standards, 2) the work as a whole appeals to a prurient interest in sex, 3) the work shows patently offensive sexual conduct, and 4) the work lacks serious literary, artistic, political, or scientific merit.

ii. Protecting Children. The government can ban private possession of child pornography, photographs of actual children engaging in sexual activity.

iii. Pornography on the Internet. Congress has made many attempts to shield minors from pornography on the Internet, most of which have been found unconstitutional. However, Congress may condition federal grants to schools and libraries on the installation of “filtering software” to protect children.

iv. Should “Virtual Pornography” Be Deemed a Crime? Computer-generated images of children engaging in sexual activity are not child pornography, since no actual children are involved in producing the images.

f. Unprotected Speech: Slander. One type pf speech that falls outside the protection of the First Amendment is slander—statements that are false and harm the reputation of another.

g. Campus Speech.

i. Student Activity Fees. Colleges may distribute such funds among student groups even when groups espouse beliefs that some students would reject.

ii. Campus Speech and Behavior Codes. The courts have generally found such codes to be unconstitutional, but many continue to exist.

h. Hate Speech on the Internet. Restrictions on such speech exist in other countries, but not in the United States.

IV. Freedom of the Press

Freedom of the press is similar to freedom of speech.

a. Defamation in Writing. Key concept: libel, a written defamation of character. Public figures must meet a higher standard of proof (actual malice) than ordinary people to win a libel suit.

b. A Free Press versus a Fair Trial: Gag Orders. The courts have occasionally ruled that gag orders may be used to ensure fair trials. To this end, the courts have said that the right of a defendant to a fair trial supersedes the right of the public to “attend” the trial.

c. Films, Radio, and TV. Freedom of the press now includes films, radio, and television, although broadcast radio and TV are not afforded the same protection as the print media. Some language is not protected (filthy words) even though the language is not obscene.

V. The Right to Assemble and to Petition the Government

The Supreme Court has held that state and local governments cannot bar individuals from assembling. State and local governments can require permits for such assembly so that order can be maintained. However, the government cannot be selective as to who receives the permit.

a. Street Gangs. Some anti-loitering laws have passed constitutional muster; others have not. Such laws cannot be vague.

b. Online Assembly. Certain Web sites advocate violence against physicians who practice abortion. The limits to such “online assembly” remain an open question.

VI. More Liberties Under Scrutiny: Matters of Privacy

There is no explicit constitutional right to privacy, but rather the right to privacy is an interpretation of the Constitution by the Supreme Court. The basis for this right comes from the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments. The right was established in 1965 in Griswold v. Connecticut.

a. Privacy Rights in an Information Age. Individuals have the right to see most information that the government may hold on them.

b. Privacy Rights and Abortion. A major right-to-privacy issue is abortion rights.

i. Roe v. Wade. In Roe v. Wade (1973) the Supreme Court held that governments could not totally prohibit abortions because this violates a woman’s right to privacy. Government action was limited depending on the stage of the pregnancy: 1) first trimester—states may require that only a physician perform the abortion; 2) second trimester—to protect the health of the mother, states may specify conditions under which the abortion can be performed; 3) third trimester—states may prohibit abortions. In later rulings, the Court allowed bans on government funds being used for abortions. It also allowed laws that require pre-abortion counseling, a 24-hour waiting period, and for women under 18, parental or judicial permission.

ii. The Controversy Continues. The Court has approved various limits on protests outside abortion clinics. A current issue is “partial birth abortion,” or “intact dilation and extraction,” a second-trimester procedure. State governments and Congress have attempted to ban the procedure, but so far, all bans have been ruled unconstitutional. In 2006, South Dakota banned almost all forms of abortion, legislation that is almost certain to put the Supreme Court in the position of having to reconsider Roe v. Wade.

c. Privacy Rights and the Right to Die. In Cruzan v. Director, Missouri Department of Health (1997) the Supreme Court decided that a patient’s life support could be withdrawn at the request of a family member if there was “clear and convincing evidence” that the patient did not want the treatment. This has led to the popularity of “living wills.”

i. What If There Is No Living Will? For married persons, the spouse is the relative with authority in this matter.

ii. Physician-Assisted Suicide. The Supreme Court has said that the Constitution does not include a right to commit suicide. This decision left states much leeway to legislate on this issue. Since that decision in 1997, only the state of Oregon has legalized physician-assisted suicide.

d. Privacy Rights versus Security Issues. Privacy rights have come under greater scrutiny since September 11, 2001.

i. The USA Patriot Act. The Patriot Act was designed to enhance the government’s ability to combat terrorism, easing restrictions on the investigation, surveillance and detention of terrorist suspects.

ii. Civil Liberties Concerns. While some see the Patriot Act as an essential tool in the fight against terrorism, others see it as an encroachment upon the First, Fourth, Fifth and Eighth Amendments.

VII. The Great Balancing Act: The Rights of the Accused versus the Rights of Society

a. Rights of the Accused. In the United States, when the government accuses an individual of committing a crime, the individual is presumed to be innocent until proven guilty.

The Bill of Rights sets forth specific rights of the accused:

i. Fourth Amendment

1. No unreasonable or unwarranted search or seizure.

2. No arrest except on probable cause.

ii. Fifth Amendment

1. No coerced confessions.

2. No compulsory self-incrimination.

3. No double jeopardy.

iii. Sixth Amendment

1. Legal counsel.

2. Informed of charges.

3. Speedy and public jury trial.

4. Impartial jury of one’s peers.

iv. Eight Amendment

1. Reasonable bail.

2. No cruel or unusual punishment.

When the Bill of Rights was enacted, these restrictions were only applicable to the national government. The Fourteenth Amendment eventually made these rights applicable to state governments. Most of these interpretations have occurred in the last half of the 20th century and interpretation is an ongoing process. The rights of the accused today are vastly different than the rights of the accused before 1950.

b. Extending the Rights of the Accused. Today the conduct of police and prosecutors is limited by various cases, and the accused has the right to an attorney if he or she cannot afford one (Gideon v. Wainwright 1963).

i. Miranda v. Arizona. The Miranda ruling requires the police to inform suspects of their right to remain silent and to have the presence of an attorney during custodial interrogation.

ii. Exceptions to the Miranda Rule. These include a “public safety” exception, and a rule that illegal confessions don’t necessarily bar a conviction if compelling evidence exists independent of the confession.

iii. Video Recording of Interrogations. In the future, such a procedure might satisfy Fifth Amendment requirements.

c. The Exclusionary Rule. This prohibits the admission of illegally seized evidence (Mapp v. Ohio 1961).

VIII. The Death Penalty.

a. Cruel and Unusual Punishment? The Eight Amendment prohibits “cruel and unusual punishment.” Does the death penalty violate the cruel and unusual punishment clause? In the 1970s most state death penalty statutes were found to be unconstitutional because of inconsistent and arbitrary use. As states began to revise capital punishment statutes and clarify the circumstances in which the death penalty was required, the Court held that the new laws were not a violation of the Eighth Amendment.

b. The Death Penalty Today. Currently 37 states allow the death penalty.

c. Time Limits for Death Row Appeals. The 1996 Anti-Terrorism and Effective Death Penalty Act limits appeals from death row. Recently, DNA testing has led to the freeing of about a hundred death row inmates who were wrongly convicted, casting a shadow of doubt on the death penalty.

IX. Features

a. What If . . . The Government Monitored All E-mail? The concern about terrorism has prompted calls for a dramatic expansion of the government’s power to monitor the communications of its citizens. While some see this as an essential measure in the quest to make the nation safe, others see it as a dangerous expansion of governmental power in violation of constitutional protections.

b. Which Side Are You On? Evolution versus Intelligent Design. While some see Intelligent Design as a legitimate alternative that explains gaps in the theory of evolution, others dismiss it as an attempt to repackage the theory of creationism and insert religion into science curriculums in public schools.

c. Politics and Diversity: Military Recruiters’ Access on Campus. When law schools sought to ban military recruiters in response to the “don’t ask, don’t tell” policy, Congress enacted the Solomon Amendment, requiring all universities receiving federal funds to open their campuses to military recruiters. In Rumsfeld v. Fair, the Supreme Court upheld the Solomon Amendment, ruling that Congress could go so far as to force schools to allow this sort of recruitment.

d. Beyond Our Borders: An Uproar over Cartoons. When a Danish newspaper printed an unflattering portrait of Muhammad it set off widespread rioting and violence. The reaction revealed a cultural rift between Muslims, who regarded this as the worst sort of heresy, and Westerners, who had grown used to parody and irreverence.

BURNS:

Civil Liberties: Ch. 17 Rights to Life, Liberty, and Property

Due Process- established rules and regulations that restrain those in government who exercise power. Unavailable to citizens of Iraq, China, and much of Africa and South America and other parts of the world. Public officials in the U.S. do have great power under certain conditions they can seize property, put us in jail, and even take lives (in extreme circumstances.)

Citizenship Rights

The basic right of citizenship was not given constitutional protection until 1868 when the Fourteenth Amendment was adopted; prior to that each state determined citizenship.

The Fourteenth Amendment states “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” All persons born in the U.S. except children born to foreign ambassadors and ministers, are citizens of this country regardless of the citizenship of their parents. The Fourteenth Amendment does not make Native Americans citizens, Congress did so in 1924.

Naturalization citizenship can also be acquired by naturalization, a legal action conferring citizenship upon an alien. See naturalizations requirements chart p. 384

Immigration and Naturalization Service (INS) (with the help of Federal Bureau of Investigation) or any state and federal court can grant citizenship. Naturalization citizenship may be revoked by court order if the government can prove citizenship was secured by deception. But citizenship cannot be taken from people because of what they have done—for example, for committing certain crimes, voting in foreign elections, or serving in foreign armies. Citizenship may be renounced voluntarily.

Dual citizenship Citizenship in two or more nations. Children, for example, abroad to American citizens may also be citizens of the nation in which they were born. Among the nations that allow dual citizenship are Canada, Mexico, France, and the United Kingdom. Dual citizenship carries negative as well as positive consequences; for example, a person with dual citizenship may be subject to national service obligations and taxes in both countries.

Right of expatriation Right of individuals to renounce their citizenship.

Rights of American Citizens

Residence the place one calls home. A person may be living in D.C. but be a citizen of CA—that is, consider CA home and vote in that state.

Most of our important rights flow from state citizenship. In the Slaughter House Cases 1873 the Supreme Court carefully distinguished between the privileges of United States citizens and those of state citizens. It held that the only privileges of national citizenship are those that “owe their existence to the Federal Government, its National Character, its Constitution or its laws.” These privileges have never been completely specified, but they include the right to use the navigable waters of the US and to protection on the high seas, to assemble peacefully and petition for redress of grievances, to vote if qualified to do so under state laws and have one’s vote counted properly, as well as to travel throughout the US.

1. The right to live and travel in the US. Aliens may be stopped at borders or on the high seas and turned away if they fail to meet the terms and conditions stipulated by the Congress for admission. Millions of people around the world yearn to come and live in the US, but only American citizens have a constitutionally guaranteed right to do so.

2. The Right to Travel Abroad International travel can be regulated within the bounds of due process. Citizens must have a valid passport in most cases to do so, however.

Rights of Aliens

Neither Congress nor the states can deny to aliens the right of freedom of religion or the right of freedom of speech. Nor can any government deprive any person, alien or citizen, of the due process of the law or equal protection under these laws.

However, Congress may deny or limit welfare and many other kinds of benefits to aliens. Congress has denied most federally assisted benefits to illegal immigrants and has permitted states to deny them many other benefits, making an exception only for emergency medical care, disaster relief, and some nutrition programs. States have considerable discretion over what benefits they give to aliens, the Supreme Court has held that states cannot constitutional exclude children of undocumented aliens from the public schools or charge their parents tuition.

Admission to the United States

Throughout our history debates have flared among those wishing to open our borders and those wishing to close them. Congress has wide discretion in setting the numbers, terms, and conditions, under which aliens can enter and stay in the U.S. The Immigration Act of 1965, as amended in 1990 and 1996, sets an annual ceiling of 675,000 for nonrefugee aliens allowed to come here as permanent residents, but when refugees and other exempt categories are added, more than 800,000 people enter the US each year. The law also sets an annual limit on immigrants from any single country. Preference is given for family reunification and to people who have special skills or who are needed to fill jobs for which US workers are not available. Another provision allows for admission of “Millionaire Immigrants” who are willing and able to invest a substantial sum to create or support a business in the US that will provide jobs for US citizens. There is also a diversity category to provide visas for 55,000 immigrants from 34 countries, whether or not they have relatives living in the US. These visas are drawn annually by lottery from a pool of qualified applicants. There are also more than 100,000 political refugees have been admitted in recent years. Political refugees are people who have well-founded fears of persecution in their own countries based on their race, religion, nationality, social class, or political opinion. They may become permanent residents after one year. The attorney general may also grant asylum to applicants who have well-founded fears of persecution in the country to which they would be returned, based on their race, religion, nationality, membership in a particular social group, or political opinion. The president may order the Coast Guard –as both Bush and Clinton did with respect to Haitian and Cuban refugees—to stop people on the high seas before they enter the territorial waters of the US and return them to their country without determining whether they qualify as refugees. Many are willing to risk great danger and suffer detention just for the chance of being granted asylum.

Once in the US, aliens are subjected to the full range of obligations, including the payment of taxes. They are counted in census for the purpose of apportioning seats in the US House of Rep. Legally admitted aliens may be deported for a variety of reasons for example, conviction of crimes involving immoral acts, turpitude, incitement of terrorist activity, illegal voting in elections, and conviction of domestic violence.

Property Rights

Property does not have rights. People do. People have the right to own, use, rent, invest in, buy and sell property. The framers, however, included in the Constitution a variety of clauses protecting rights. They were determined to limit government so it could not endanger the right of people to use and enjoy their property.

Contact clause Clause of the Constitution that was originally intended to forbid state governments to modify contracts made between individuals; for a while interpreted to forbid state governments from adversely affecting property rights; no longer interpreted so broadly and no longer constrains state governments from exercising their police powers.

Police powers inherent powers of state governments to pass laws to protect the public health, safety, and welfare; the national government has no directly granted police powers, but through other delegated powers accomplishes the same goals.

Eminent domain power of a government to take private property for public use; the U.S. Constitution gives national and state governments this power and requires them to provide just compensation for property so taken.

Regulatory taking government regulation of property so extensive that government is deemed to have taken the property by the power of eminent domain, for which it must compensate the property owners.

Due process established rules and regulations that restrain those in government who exercise power

Procedural due process constitutional requirement that governments proceed by proper methods; places limits on how governmental power may be exercised.

Substantive due process constitutional requirement that government act reasonably and that the substance of the laws themselves be fair and reasonable; places limits on what a government may do.

Privacy Rights

The most important extension of substantive due process in recent decades has been its expansion to protect the right of privacy, especially marital privacy. Griswold v. Connecticut 1965 the Supreme Court pulled together elements of the First, Third, Fourth, Ninth, and Fourteenth Amendments.

Three Aspects:

1. the right to be free from governmental surveillance and intrusion, especially in marital matters

2. The right not to have private affairs made public by the government

3. The right to be free in thought and belief from governmental regulations

Abortion Rights

The most controversial aspect of constitutional protection of privacy relates to the extent of state power to regulate abortions. In Roe v. Wade 1973 the Supreme Court ruled: 1. during the first trimester of a woman’s pregnancy, it is an unreasonable and therefore unconstitutional interference with her liberty and privacy rights for a state to set any limits on her choice to have an abortion or on her doctor’s medical judgements about how to carry it our 2. during the second trimester, the state’s interest in protecting the health of women becomes compelling, and a state may make a reasonable regulation about how, where, and when abortions may be performed 3 during the third trimester when the life of the fetus outside the womb becomes viable, the state’s interest in protecting the unborn child in so important that the state can prohibit abortions altogether, except when necessary to preserve the life or health of the mother.

Bowers v. Hardwick 1986 the Supreme Court refused to extend such protection to relations between homosexuals. The majority ruled that although sodomy occurs in the privacy of the home, it was considered a crime. State Supreme Courts found greater privacy protection in their state constitutions than the U.S. Supreme Court found in the U.S. Constitution. In 1999, the Vermont state supreme court held that same sex couples must be given the same benefits and protections as married couples.

In Boy Scouts of America v Dale 2000 the Supreme Court held that a New Jersey public accommodations law could not be applied to keep the Boy Scouts from excluding gays from being Scout leaders—for the court the Boy Scouts are a private association, and as such they have a rights to exclude people whose beliefs and conduct are inconsistent with the Scouts’ views and mission.

The U.S. Supreme Court in Romer v. Evans 1996 struck down an initiative amending the Colorado constitution that prohibited all legislative, executive, and judicial action design to protect homosexuals at any level of state or local government. This provision violated the equal protection clause because it lacked a rational basis and simply represented a prejudice toward a particular group of people.

Rights of Persons Accused of Crimes

Freedom from Unreasonable Searches and Seizures (Fourth Amendment)

A search warrant issued by the magistrate after the police indicate under oath that they have probable cause outlining specific conditions—what place is to be searched and what things are to be seized.

Deadly force it is unconstitutional to shoot at an apparently unarmed, fleeing, suspected felon unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious injury to the officer or others.

When police fired 41 bullets into an unarmed black man, protests erupted in the Bronx, NY neighborhood.

Terry v. Ohio 1968 a stop and frisk exception to searches of individuals, when officers have reason to believe they are armed and dangerous, or have committed or are about to commit a criminal offense. The so-called Terry search is limited to a quick pat-down to check for weapons that might be used to assault the arresting officer, to check for contraband, to determine identity, or to maintain briefly the status quo while obtaining more information.

The Plain View Exception permits officers to seize evidence without a warrant if : 1. they are lawfully in a position from which the evidence can be viewed; 2 it is immediately apparent to them that the itiems they observe are evidence of a crime or are contraband; 3 they have probable cause to believe – a reasonable suspicion will not do—that the evidence uncovered is contraband or evidence of a crime.

Exigent Circumstances Searches are permissible when officers do not have time to secure a warrant before evidence is destroyed or a crimina escapes capture, or when there is need ‘to protect or preserve life or avoid serious injury.” An example is that fire fighters and police may enter a burning building without a warranct and may remain thee for a reasonable time to invesitgati the couse of the blaze after the fire has been extinguished. However, after the fire has been put out, the emergency is not to be used as an excuse to make an exhaustive, warrantless search for evidence.

The Automobile Exception If officers have probable cause to believe that an automobile is being used to commit a crime, even a traffic offense or that it contains persons who have committed crimes, or that it contains evidence of crimes, they may stop the automobile, detain the persons and search them and containers or packages. The driver and passengers may be asked to get out of the car without violating the Fourth Amendment.

Foreign Agents Congress has endorsed the presidential claim that a president can authorize warrantless wiretaps and physical searches of agents of foreign countries.

Troublesome area in recent times, has been compulsory, random drug testing.

But the use of metal detectors and locker searches at schools does not require search warrants and other protections applied to police searches.

The Exclusionary Rule In Mapp v Ohio 1961 the Supreme Court adopted a rule excluding from a criminal trial evidence that the police obtained unconstitutionally or illegally. This exclusionary rule was adopted to prevent police misconduct. Critics of the exclusionary rule question why criminals should go free just because of police misconduct or ineptness, but the Supreme Court has refused to abandon the rule. It has made some exceptions to it, however, such as cases in which police relied in good faith on a search warrant that subsequently turned out to be defective or granted improperly.

The Right to Remain Silent

The privilege against self-discrimination stems from the courts in 17th century England forcing confessions from religious dissenters. Supposedly this privilege should only be extended to persons with a reasonable fear that their answers might support a criminal prosecution against them. Rather than answers or responses that might be embarrassing or might lead to loss of a job or even to civil suits; persons must have a reasonable fear that their answers might support a criminal prosecution against them.

Immunity Protection granted by prosecutors to witnesses in exchange for giving up their constitutional right not to testify against themselves.

The Miranda Warning Roughly 90% of all criminal convictions result from guilty pleas and never reach a full trial. Police questioning can be easily abused, however, as officers sometimes forget or ignore the constitutional rights of suspects, especially those who are frightened and ignorant. In 1966, Miranda v. Arizona announced that no conviction could stand if evidence introduced at the trial had been obtained by the police during custodial interrogation unless suspects were notified that they have a right to remain silent and to have an attorney present (and that a lawyer will be appointed to represent them if they cannot afford to hire their own attorney. Failure to comply with these requirements leads to reversal of a conviction, even if other evidence is sufficient to establish guilt.

Fair Trial Procedures

--The right to counsel – (at every stage of the criminal proceedings—preliminary hearings, bail hearings, trial, sentencing, and first appeal.

--Indictment A formal charge issued by a grand jury against an individual for a specified crime; also called true bill. No one except members of the armed forces, can the national government force to stand trial for a serious crime. In other words, anyone that has to stand trial on serious charges must go before the grand jury;

grand jury a jury of 12 to 23 persons who, in private, hear evidence presented by the government to determine whether persons shall be required to stand trial; if the jury believes there is sufficient evidence that a crime was committed, it issues an indictment.

Plea bargain Negotiations between prosecutor and defendant aimed at getting the defendant to plead guilty in return for the prosecutor’s agreeing to reduce the seriousness of the crime for which the defendant will be charged.

The Trial

Anyone suspect is guaranteed a speedy and public trial. Remember defendants often request additional time to prepare their defense and delay often works to their advantage.

Petit jury-- A jury of 6 or 12 persons that determines guilt or innocence in a civil or criminal action. Guaranteed under the Sixth Amendment

The crime rate has been going down in the past few years but public concern remains high. Presidents, governors, and legislators flex their muscles on crime and in a number of states there is a THREE strikes you’re out law, requiring lifetime sentences with the possibility of parole for individuals convicted of three felonies.

Double Jeopardy - the Fifth Amendment provides that no person shall be subject for the same offense to be twice put in jeopardy for life or limb. One can be prosecuted but both the national and state government as well as two states.

Capital Punishment The death penalty—controversial –Japan and the US are the only industrialized nation to retain the death penalty. After a 10 year moratorium, the US Supreme Court ruled in 1976 that the death penalty should not be considered cruel and unusual punishment. In the 1990s the Rehnquist Court made it easier to impose death sentences, cut back on appeals, and carry out executions. Currently 38 states have the death penalty. Since then over 600 have been executed in the US and over 3600 are on death row.

Criticisms of our system

--Too many loopholes criminals may go unpunished because 1 police decide not to arrest them, 2 the prosecutor decides not to hold them for trial 3 grand jury decides not to indict them 4 the judge decides not to hold them for trial 5 the jury decides not to convict them 6 the appeals court decides to reverse the conviction, 7 the judge decides to release them on a habeas corpus writ 8 the president or governor decides to pardon, reprieve, or parole them if convicted

As a result, police blame prosecutors. Prosecutors blame police, they all blame juries.

Too unreliable Trial by juries are considered problematic to many, costly and timeconsuming. Theatrical combat between lawyers who based their appeals on the prejudices and sentiments of jurors. Also there is jury nullification jurors ignore their instructions to consider only the evidence presented in court and by voting for acquittal express their displeasure with the law or the actions of prosecutors or police

Too discriminatory

Equal justice under the law is the goal but poor people accused of crimes who can’t afford lawyers must be furnished them at government’s expense.

Unfair to Minorities African Americans and Hispanics in underprivileged communities Critics say police are enforcers of white law—studies show that white officers are rough, brutal when dealing with minorities. Unfounded arrest 4x as high as whites per a study in CA, Latino 2x. Police use racial profiling ( Police target racial minorities as potential suspects of criminal activities.

In recent decades, there have been efforts to recruit more AF Am and Hispanics as police officers, and various boards dealing with law enforcement Community policing is also implemented in some cities with churches and community groups patrol neighborhoods as a method of crime prevention

Amendments

List and briefly explain each Amendment and answer the subsequent questions.

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28. How many Bill of Rights Amendments were proposed initially?

29. What is the primary difference between Civil Liberties and Civil Rights?

30. Create a Chart that displays your mastery of Amending the Constitution.

Acts, Bills, and Laws, From 1791 to 1992

|Amendment |Ratified |Description |

|1st |1791 |Rights to Religion, Speech, Press, Assembly, Petition |

|2nd |1791 |Right to Bear Arms |

|3rd |1791 |Quartering of Soldiers |

|4th |1791 |Search and Seizure |

|5th |1791 |Grand Jury, Double Jeopardy, Self-Incrimination, Due Process |

|6th |1791 |Rights of Accused in Criminal Prosecutions: Rights to Jury Trial, to Confront|

| | |Opposing Witnesses and to Counsel |

|7th |1791 |Jury Trial |

|8th |1791 |Protections against Excessive Bail, Cruel and Unusual Punishment |

|9th |1791 |Non-Enumerated Rights |

|10th |1791 |Rights Reserved to States |

|11th |1795 |Suits Against a State |

|12th |1804 |Election of President and Vice-President |

|13th |1865 |Abolition of Slavery and Involuntary Servitude |

|14th |1868 |Protects rights against state infringements, defines citizenship, prohibits |

| | |states from interfering with privileges and immunities, requires due process |

| | |and equal protection, punishes states for denying vote, and disqualifies |

| | |Confederate officials and debts |

|15th |1870 |Voting Rights |

|16th |1913 |Federal Income Tax |

|17th |1913 |Popular Election of Senators |

|18th |1919 |Prohibition |

|19th |1920 |Women's Right to Vote |

|20th |1933 |Limits Presidential Terms |

|21st |1933 |Repeal of 18th Amendment (Prohibition) |

|22nd |1951 |Two-Term Limitation on President |

|23rd |1961 |District of Columbia Presidential Vote |

|24th |1964 |Abolition of Poll Tax Requirement in Federal Elections |

|25th |1967 |Presidential Vacancy, Disability and Inability |

|26th |1971 |Right to Vote at Age 18 |

|27th |1992 |Congressional Compensation |

CIVIL LIBERTIES

INTRODUCTORY NOTES

A commitment to personal freedom is deeply rooted in America’s colonial past. English people had waged a continuing struggle for individual rights, and the early colonists brought a dedication to that cause with them to America.

Their commitment to freedom took root here, and it flourished. The Revolutionary War was fought to preserve and expand these very rights: The rights of the individual against the government.

The Constitution, an important document indeed, did not include a general listing of the rights of people. That omission raised an outcry. The objections were so strong that some states ratified (approved) of the Constitution only with the understanding that a general listing of the rights of people would be added immediately. Congress met that demand in its first session with a series of proposed amendments. Ten of them, in fact, the Bill of Rights was ratified December 1791.

(13th and 14th Amendments were later added to the Constitution’s guarantees of personal freedom.) The 13th Amendment abolished slavery. The Due Process Clause of the 14th Amendment prevents the States from abridging (denying) rights guaranteed in the Constitution’s Bill of Rights. Due Process Clause: No State shall… deprive any person of life, liberty, or property, without due process of law.

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Civil Rights & Civil Liberties

The distinction between Civil Rights and Civil Liberties is at best cloudy, and scholars often disagree on the matter. You should think of the distinction in the following way: Civil liberties are protections against government. They are guarantees of the safety of persons, opinions, and property from arbitrary and random acts of the government. (e.g. freedom of religion, freedom of speech and press, and the guarantee of a fair trial).

Civil Rights, positive acts of government that seek to make constitutional guarantees a reality for all people. From this perspective, examples of civil rights include prohibitions of discrimination on the basis of race, sex, religious belief, or national origin. These prohibitions are outlined in the Civil Rights Act of 1964.

Process of Incorporation

The Court has incorporated or included, most of the guarantees in the Bill of Rights into the 14th Amendment’s Due Process Clause. The Court began that historic process in Gitlow v. New York in 1925. The landmark case involved Benjamin Gitlow, a communist, who had been convicted in the State courts of criminal anarchy. He had made several speeches and published a pamphlet calling for the violent overthrow of government in this country.

The Supreme Court upheld (supported) Gitlow’s conviction and the State law under which he had been tried, viewing Gitlow’s conduct as a call to action. But the 1st Amendment, freedom of speech provision was incorporated by the 14th Amendment thus applying to State as well as federal laws.

CIVIL LIBERTIES QUALIFIER

Give the term or phrase that shows your understanding of the following statements.

1. _______________ Gitlow v. New York speech or other first Amendment freedoms may be curtailed if there is a possibility that that expression might lead to some evil.

2. ___________________ Constitutional mandates demanded by the people before accepting a strong central government

3. _______________ The view that most of the protections of the Bill of Rights apply to state governments through the Fourteenth Amendment’s due process clause.

4. ____________________ This prohibits a nationally supported church.

5. ____________________ Constrains the national government from prohibiting individuals from practicing the religion of their choice.

6. ____________________ Direct state aid could not be used to subsidize religious instruction. Aid must be secular (nonreligious) in aim.

7. ____________________ public funds for private and church-related schools that increases educational options.

8. Engel v. Vitale

9. ____________________ Supreme Court outlawed officially sponsored daily readings of the Bible and recitation of the Lord’s Prayer in public school.

10. ____________________The existence of a creative force can explain voids in the evidence supporting Darwin’s evolutionary theory.

11. ____________________ The New York Times v. United States 1971 involved prior restraint (censorship).

12. ____________________Durable health-care powers of attorney: Terri Schiavo’s spouse, not the parents, is the legal guardian. Vegetative state for over decade, husband wanted the feeding tube removed and her parents resisted and filed suit with the courts.

13. _________________ Federal Communications Commission established in 1934, to regulate electromagnetic wave frequencies. No one has the right to use the airwaves without a license from the FCC. Licences are issued periodically and impose a variety of regulations on broadcasting.

14. Rights of the Accused (List 10)

15. __________________ “You have the body.” An order that requires jailers to bring a prisoner before a court or judge to bring prisoner before a court or judge and explain why the person is being held

16. __________________ In 1973, US Supreme Court accepted the argument that the laws against Jane Roe’s right to privacy under the Constitution. The Court ruled that in the first trimester of a pregnancy abortion was an issue solely between a woman and her physican. There are conditions for 2nd and 3rd trimesters too.

17. __________________ Justice Potter Stewart “I know it when I see it.” Chief Justice Warren Burger listed material of a sexual nature that offends the average person that lacks literary, artistic, political, or scientific merit in the Miller v. California case.

18. __________________ An order issued by a judge restricting the publication of news about a trial or a pretrial hearing to protect the accused’s right to a fair trial

19. __________________ A policy forbidding the admission at trial of illegally seized evidence (Mapp v. Ohio)

20. __________________ The public uttering of a false statement that harms the good reputation of another. The statement must be made to, or within the hearing of, persons other than the defamed party.

21. __________________ Deterrent or a barbaric act?

TODAY, 38 states and the federal government have capital punishment laws based on the Gregg v. Georgia case. Associated with the Eighth Amendment -- opposed to Cruel and Unusual punishment.

22. __________________ Wrongfully hurting a person’s good reputation. The law imposes a general duty on all persons to refrain from making false, defamatory statements about others.

23. __________________ A false statement that harms the good reputation of another. A written defamation of a person’s character, reputation, business, or property rights.

24. __________________Controversial issue of recent times: sometimes unconstitutional other times constitutional.

25. __________________ The issue: evolution or creationism.

26. __________________ The provision of the First Amendment guaranteeing the free exercise of religion.

27. __________________ Justice Oliver Wendell Holmes’ position on determining when government may restrict free speech. Restrictions are permissible, he argued, only when speech creates a clear and present danger to the public order.

28. __________________ Either knowledge of a defamatory statement’s falsity or a reckless disregard for the truth.

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