Mr



Mr. McCormack

American Government

Central Dauphin High School

Chapter Twenty – Civil Liberties: Protecting Individual Rights

I. Due Process of Law

A. The Meanings of Due Process

1. The government cannot deprive anyone of life, liberty, or property without due process of the law

a. The Fifth Amendment applies that principle to the federal government

b. The Fourteenth Amendment applies that principle to the state (and local) governments

2. At the very least, the government must follow its own rules and act reasonably

3. The Supreme Court has been unable to give “due process” an exact or simple meaning

4. The Court seems to be exploring its meaning on a case-by-case basis

5. Two Different Theories

a. Procedural Due Process

i. Addresses “how” the government functions

ii. Government must follow laws consistently and fairly

b. Substantive Due Process

i. Addresses “what” the government attempts to do

ii. The laws themselves must be fair

iii. The government cannot take away anything that is considered essential to the American concept of ordered liberty

iv. Many, but not all, of the rights in the Bill of Rights are protected from state interference by substantive due process

B. The Police Power

1. The police power is the authority of each state to protect the public health, safety, morals, and general welfare

a. Promote health – Regulating alcohol and tobacco use

b. Promote safety – Punishing drunk drivers

c. Promote morals – Outlaw prostitution

d. Promote general welfare – Mandate primary education

2. Courts must balance the well-being of society against the rights of individuals

C. The Right of Privacy

1. Not expressed anywhere in the Constitution

2. First recognized by the Supreme Court in Griswold v. Connecticut (1965)

a. The Court struck down a Connecticut law that outlawed contraception

b. Privacy exists in the “penumbra” of rights implied by the Constitution

3. The right to privacy has been expanded to protect everything from abortion (Roe v. Wade) to homosexuality (Lawrence v. Texas)

4. Abortion rights

a. Established in 1973 by Roe v. Wade

i. The Court attempted to balance the state’s interest in protecting the life of its future citizen against the privacy of a woman

ii. The Court prevented state interference in first trimester abortions

iii. The Court allowed reasonable restrictions on how, when, and where abortions can be performed in the second trimester

iv. The Court allowed states to prohibit all third trimester abortions

b. Later Court decisions have narrowed abortion rights

i. Webster v. Reproductive Health Services: outlawed abortions of unborn children that could survive outside the womb after 20 weeks (in the second trimester) except to save the life or health of the mother

ii. Ohio v. Akron Center for Reproductive Health: required minors to inform at least one parent before having an abortion

iii. Planned Parenthood v. Casey: allowed restrictions on abortions that do not impose an “undue burden” on women

1. Required counseling on alternatives before the abortion

2. Mandated a 24-hour waiting period

3. Required clinics to keep detailed records

4. Did NOT uphold a law requiring a woman to tell her husband before the abortion

iv. In 2007, the Court upheld a federal ban on partial birth abortion

II. Freedom and Security of the Person

A. Slavery and Involuntary Servitude

1. The Thirteenth Amendment outlaws slavery and involuntary servitude except in punishment for a crime

2. Ratified in 1865, the purpose of the amendment was to end African-American slavery, not every form of involuntary servitude

3. The United States still permits several forms of involuntary servitude

a. Military Draft (Arver v. US)

b. Jury Duty

4. Congress can also use its authority under this amendment to combat racial discrimination

B. The Right to Bear Arms

1. The Second Amendment has never been incorporated into the Fourteenth Amendment

2. Some argue that the amendment guarantees an individual right to bear arms, others believe it prevents the federal governments from outlawing states’ militias

C. The Security of Home and Person

1. The Third Amendment forbids the quartering of troops in private homes in times of peace and allows quartering in times of war only if Congress passes authorizing legislation

2. The Third Amendment has never been subject to a Supreme Court case

3. The Fourth Amendment limits the states’ police powers

a. Police have no general authority to search persons or property

b. Police have no general authority to seize persons or property

c. Generally, police must have a warrant to do either

d. Warrants can only be issued with probable cause to believe a crime is being/has been committed

e. Arrests may be made with probable cause and without a warrant, but the person must be brought promptly (within 48 hours) before a judge for a probable cause hearing to ensure the arrest was legal

f. Warrantless searches may be conducted in areas that are in plain view of the public

4. The search warrant requirement of the Fourth Amendment applies anywhere an average person would have a reasonable expectation of privacy

a. Automobiles have a greatly lessened expectation of privacy

b. Pursuant to a lawful stop, police may search anything within a car that they have reason to suspect holds evidence of a crime

5. Police may search a suspect taken into custody to ensure that there are no weapons or destructible evidence within arms reach

6. Improperly obtained warrant must be excluded from trial unless one of several exceptions apply

a. Inevitable Discovery

b. Good Faith

c. Honest Mistake

7. Random drug testing has been upheld even in the lack of suspicion of drug use or a warrant

III. Rights of the Accused

A. Habeas Corpus

1. Also called the “writ of liberty”

2. Courts require the presence of prisoners to determine whether they are being held legally

3. The government may suspend the writ in cases of open rebellion or invasion if required for public safety

a. The Court has determined that Congress, not the President, must suspend it

b. The Court also ruled that it can only be suspended in areas where fighting is actually ongoing or likely to occur

4. The Court has never upheld a suspension of the writ, even during the Civil War and World War II

B. Bills of Attainder

1. Bills of Attainder are legislative acts that inflict punishment without a court trial

2. This would violate the separation of powers

3. The Court has held this applies not only to specified individuals but also to easily ascertained members of a group

4. There have been very few cases of this happening since 1791

C. Ex Post Facto Laws

1. The Constitution prevents the retroactive application of laws

2. This only applies to criminal, not civil (including tax) laws

D. Grand Jury

1. Grand juries are bodies of ordinary citizens (usually 16 to 23) that determine whether prosecutors have enough evidence to formally charge people with crimes

a. Indictment – when the grand jury agrees with charges brought by the prosecutor

b. Presentment – when the grand jury makes charges on its own initiative

2. The process is secretive and one-sided, but is meant to be a check on prosecutorial power

3. Many states do not use grand juries

E. Double Jeopardy

1. No person may be tried twice for the single occurrence of an offense

2. Once found not guilty you could even publicly confess without fear of punishment

3. A later offense of the same type can still be prosecuted

4. Double Jeopardy does not prohibit certain “retrials”

a. Parallel prosecution under both state and federal law

b. Retrial after an appeal

c. Retrial after a mistrial (hung jury)

d. Criminal prosecution and civil litigation

F. Speedy Trial

1. This guarantees a timely trial, one that is neither finished too quickly nor delayed too long

2. The federal guideline is that trials should start within 100 days, but may last longer

3. Long delays allow opportunities for evidence to be lost or forgotten

4. Unreasonable delays will be judged by four criteria

a. Length of the delay

b. Reasons for the delay

c. Actual harm suffered by the defendant

d. Whether the defendant asked for a prompt trial

G. Public Trial

1. The defendant has the right to a public trial to ensure that there are witnesses to the judge’s and prosecutor’s conduct

2. The public has a right to know what is happening in the courts

3. Courts may impose reasonable limits on spectators and media

4. If the publicity of a trial interferes with a defendant’s right to a fair trial, the defendant’s interest will be paramount

H. Trial by Jury

1. The Sixth Amendment guarantees trial by an impartial jury

2. The trial jury is called a petit jury because it is smaller (has fewer members) than a grand jury

3. Defendants may seek a change of venue if it seems like the population around the area where the crime was committed would be unlikely to produce impartial jurors

4. Attorneys attempt to uncover juror bias through a process of questioning called voir dire

5. A defendant may waive the right to a jury trial and request a bench trial in front of a judge, though the judge has discretion in granting the request

6. No person can be excluded from a jury based on discrimination

I. Right to an Adequate Defense

1. The Court will appoint attorneys to represent accused criminals who can’t afford them

2. Attorneys must present an adequate defense or else the conviction can be overturned

3. The right to counsel can also be requested during police questioning even before charges are filed

J. Self-Incrimination

1. The Fifth Amendment ensures that you will not be a witness against yourself

a. This applies only to testimony, not to other kinds of evidence (breath, blood, etc.)

b. Refusal to testify should not be interpreted as an admission of guilt

c. This protection applies to any situation in which a person is legally obliged to answer a question that could lead to a criminal charge, not just court proceedings

d. Miranda v. Arizona the Court held that police must warn people about these rights before questioning people in custody

2. State laws allow certain people in privileged relationships to refuse to testify as well

a. Spouse

b. Attorney

c. Doctor/Psychiatrist

d. Clergy

IV. Punishment

A. Bail and Preventive Detention

1. Bail is the sum of money that the accused must post to be released from prison prior to trial

2. Bail is not guaranteed in all cases, but is preferred for most

a. It is easier to work on your defense if not in prison

b. It is hard to justify imprisoning someone before guilt has been established

3. The amount of bail must be reasonably calculated to assure a defendant’s appearance at trial

a. Consider the severity of the crime and possible penalties

b. Consider the wealth of the person

c. Consider the risk of defendant’s flight

4. Sometimes people are released on their honor

5. Jumping bail is a separate crime that can be punished

6. People may be held without bail if there is reason to believe they will commit another serious crime before trial

a. Some argue this preventive detention violates the assumption of innocence

b. The Court rejected the idea that preventive detention was punishment

c. More than half of the states and the federal government practice preventive detention

B. Cruel and Unusual Punishment

1. The Eighth Amendment prohibits cruel and unusual punishments

2. The definition of “cruel and unusual” has evolved over time

3. The Court has ruled the amendment prohibits barbarous tortures and executions

4. Very few state practices (such as refusing medical care) have been found cruel or unusual

C. Capital Punishment

1. Capital punishment has been practiced in the United States since before the Revolution

2. The Supreme Court struck down all death penalty statutes in 1972 because of what they viewed as “capricious selection” in enforcement, but 35 states have resurrected it since then

3. All states have lethal injection but some offer the option of alternative methods (hanging, firing squad, and gassing) in addition to lethal injection

4. The United States is the only Western country that still practices capital punishment, and many people think it should be outlawed

5. While capital punishment itself is constitutional, certain practices would be cruel and unusual

a. People cannot be executed for offenses committed before their eighteenth birthday

b. Mentally handicapped people cannot be executed

c. Juries, not judges or legislatures, must decide to impose the death sentence

D. Treason

1. Treason is the only crime defined in the Constitution

2. Article III, Section 3 defines treason as one of two things

a. Levying war against the United States

b. Adhering to [America’s] enemies, giving them aid and comfort

3. Convictions of treason must be supported by the testimony of two witnesses to the same act or a confession in open court

4. Theoretically, treason can only be committed during wartime

5. No one has ever been put to death for treason, even though that is the maximum penalty

6. Congress has criminalized many other acts that resemble treason

a. Espionage

b. Sabotage

c. Sedition

7. John Brown was convicted of treason against the state of Virginia in 1859 and executed

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