Chapter 20: Civil Liberties: Protecting Individual Freedoms



Chapter 20: Civil Liberties: Protecting Individual Freedoms

Section 1: Due Process of Law

I. Procedural and Substantive Due Process

A. Due Process

1. Government must act fairly and in accord with established rules

B. Examples of Procedural and Substantive Due Process

1. Procedural

a. Illegal search and seizure; blatantly breaking the right to privacy

2. Substantive

a. Finding fault with a law itself

C. The 14th Amendment and the Bill of Rights

1. The 14th Amendment basically nationalizes the Bill of Rights

II. Due Process and the Police Power

A. Police Power

1. The power of each State to act to protect and promote the public health, safety, morals, and general welfare

2. What a state can do is decided by the courts

3. Search warrant

a. A court order authorizing a search

B. Legislators and judges have often found the public’s health, safety, morals, and/or welfare to be of overriding importance when deciding appeals to police power

III. Right of Privacy

A. “The right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy”

B. Abortion

1. 1973 Roe v. Wade-Supreme Court decision legalizing a woman’s right to choose

2. Courts stance on abortion may be changing:

a. Webster v. Reproductive Health Services-1989-Court upheld two Missouri that prohibit abortions, except those to preserve the mother’s life or health, (1) in any public hospital or clinic in that State and (2) when the mother is 20 or more weeks pregnant and tests show that the fetus is viable

b. 1990-Court upheld that a State may require a minor :

1) To inform at least one parent before she can obtain an abortion

2) To tell both parents of her plans, except in cases where a judge gives permission for an abortion without parental knowledge

c. There are many cases coming from the states on this issue

Section 2: Freedom and Security of the Person

I. Slavery and Involuntary Servitude: The 13th Amendment

A. Section 1

1. “Neither slavery nor involuntary servitude...shall exist within the United States, or any place subject to their jurisdiction”

2. Outlaws forced labor

a. Peonage

1) A condition in which a person is bound to work for another in order to fulfill a contract or satisfy a debt

3. The draft is an exception from this

4. Those convicted of crimes can be forced to work

B. Section 2

1. Gives Congress the expressed power “to enforce this article by appropriate legislation”

2. Prohibits race discrimination

3. Civil Rights laws addressed this issue

II. Right to Keep and Bear Arms

A. 2nd Amendment

1. It was added to the Constitution to protect the right of each State to keep a militia (citizen-soldier

2. It does not guarantee a right to keep and bear arms free from restriction by government

3. Under fire today

4. States can limit the right to keep and bear arms

III. Security of Home and Person

A. 3rd Amendment

1. Forbids the quartering of soldiers in private homes in time of peace or in time of war except “in a manner to be prescribed by law”

B. 4th Amendment

1. 1. Protects against illegal search and seizures

2. 2. Protects the right to privacy

3. Police must obtain a search warrant

a. A court order for authorities to make an arrest, search person or place or take property as evidence

b. They need probable cause

1) Reasonable belief

2) Some searches need no warrants-see page 523

c. Exclusionary Rule

1) Illegal evidence can’t be used against the person from whom it was seized

d. Surveillance

1) Observe with hidden cameras or tape recorders

3. 2) There are limits. Example: Need warrant within 48 hours after installing device

4. See page 524 to understand how this applies to automobiles

Section 3: Rights of the Accused

I. Habeas Corpus

A. Writ of Habeas Corpus

1. Intended to prevent unjust arrests and imprisonment

2. A court order directed to an officer holding a prisoner, commanding the officer show cause why the prisoner should not be released

3. Right to the writ cannot be suspended “unless when in cases of rebellion or invasion the public safety may require it”

II. Bills of Attainder

A. A legislative act that inflicts punishment without a court trial

B. Neither Congress nor the States can pass such measures

III. Ex Post Facto Laws

A. Three Features

1. A criminal law

2. Applied to an act committed before its passage

3. A law that works to the disadvantage of the accuse

B. Neither Congress nor the State legislatures may pass such laws

IV. 5th Amendment

A. Protects the rights of people accused of a crime

1. Keeps from being unfairly charged with serious crimes

2. 1st Grand Jury investigation

a. Not a trial, they look at evidence and decide whether there is enough for a criminal trial

3. Capital Crime

a. One that the death penalty may be given

4. Grand Jury usually meets in secret with the Prosecuting Attorney

a. The lawyer who represents the government

b. He/she presents the Indictment-formal statement charging the accused with a crime

c. Presentment

1) A formal accusation brought by the grand jury on its own motion, rather than that of the prosecutor

d. Information

1) An affidavit in which the prosecutor swears that there is enough evidence to justify a trial

2) Being used in more states today

5. Double Jeopardy

a. Idea that a person cannot be charged twice for the same crime

6. Protecting Witnesses

a. Self-Incrimination-idea that a person can “take the 5th” meaning they refuse to testify

b. May be held in contempt of court

c. Immunity can be granted to witnesses-means that a witness’ own testimony will not be used to prosecute them for a crime

7. Miranda Rights (1966)

a. Police, when making an arrest, must inform the accused of their rights

V. 6th Amendment

A. Guarantees the right to a fair trial

B. A person has the right to

1. Know the charges being brought against them

2. Confront witnesses

3. Call defense witnesses

4. Receive counsel

C. A fair trial means choosing an impartial jury

1. A person may waive the right to a jury trial. If this happens, they receive a bench trial

a. The judge alone hears the case

D. People get a Subpoena

1. A court order requiring a person to appear as a witness

E. Everyone has the right to legal advice (Counsel)

F. Public Defenders

1. Defense lawyers for people who cannot afford an attorney in state cases

G. In federal courts and most state courts, conviction requires a unanimous vote

Section 4: Rights of the Accused: Punishment

I. 8th Amendment

A. Sets limits on criminal punishment

B. Courts cannot set excessive bail nor inflict “cruel or unusual punishment”

1. Bail-money charged for release. This money is a promise to show up in court

2. Bail Reform Act-must release people who can’t make bail payments unless the offense is serious enough

C. Capital Punishment

1. Death penalty-has been upheld by the Supreme Court

2. Good or Bad?

3. See page 537 showing which states have capital punishment and the method used

D. Preventive Detention-1984

1. Federal judges can order that an accused felon be held, without bail, when there is good reason to believe that that person will commit yet another serious crime before trial

2. Upheld by the Supreme Court

II. Treason

A. Consists of either:

1. Levying war against the United States

2. “Adhering to their enemies, giving them aid and comfort”

3. Congress has established the death penalty as the maximum penalty for treason, but no person has ever been executed for the crime (can only be committed in wartime)

4. Espionage or sabotage in peacetime

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