3. Here’s What We’ll Learn…
Civil Liberties under the original Constitution
Incorporation
First Amendment rights and restrictions
(scholars…get ready to argue!)
Due Process rights
Privacy rights
Rights of the accused
Capital Punishment
4. Civil Liberties Under the Original
Constitution
Habeas Corpus—court order
directing that a prisoner be
presented in court and charges
explained
Probably can never be suspended
(Lincoln tried in the Civil War)
Enemy combatants???
Ex Post Facto Laws—also banned
(retroactive punishments)
Bill of Rights added
Then…Amendment 14 and the Due
Process Clause (Civil War
Amendment)
5. Incorporation Originally: Bill of Rights only
applied to the Federal
Government’s dealings with the
citizens
Then the 14th Amendment
guaranteed under the Due
Process Clause that all citizens
had to be treated equally
Substantive Due Process (limits
what government can do)
Procedural Due Process (how
laws are applied)
Gitlow v. New York (1925) began
incorporation, the case-by-case
extension of the bill of rights to
the states
8. Rights From Amendment I
Speech
Press
Religion
Assembly
Petition the Government
9. Freedom of Speech
“Congress shall make no law
…abridging the freedom of
speech…”
Pure speech v. symbolic
speech
Is this an absolute right?
When can it be LEGALLY
taken away
Endangering public safety
Advocating illegal activity
Overthrow of Government
(esp. wartime)
10. When Can It Be Regulated?
Flag burning in a protest?
YES (Texas v. Johnson)
Burning Draft Card?
No (US v. O'Brien)
Picketing a private residence?
NO (Frisby v. Schultz)
Three part test to uphold:
Within powers of government
Regulation must be
unrelated to free speech
Other channels of speech
are available
11. Unprotected Speech
Sedition: urges resistance
to lawful authority or
government overthrow
Defamatory speech: false
speech; damages
character or reputation
Libel (written)
Slander (spoken)
Public official? OK
Obscenity
Fighting words: violent
reaction
Student speech: can be
regulated
12. The Court's Test
Evolution of established limits:
1. Clear and present danger
(immediate danger)
2. Bad Tendency Doctrine
(Restricted if it tended to lead
to an illegal action)
3. Preferred Position Doctrine—
Speech should almost NEVER
be restricted (speech has a
preferred position in the
constitution)
1. These are fundamental rights;
will assume law is
unconstitutional)
13. Freedom of Religion
“Congress shall
make no
law…respecting
the establishment
of religion…[or]
prohibiting the free
exercise of
religion…”
Establishment
Clause
Free Exercise
Clause
14. Separationof Church and State
Establishment Clause
No state-sponsored religion
Wall of separation: how
high?
Pledge of Allegiance
Money
Everson v. Board of Ed
(1947)
New Jersey
Public $ used to bus
Upheld (furthered education,
not religion)
15. Lemon Test
Lemon v. Kurtzman (1971)
State aid to church is legal as along as:
1. Have a non-religious purpose
2. Can’t advance or inhibit religion
3. Avoid excessive government entanglement
in religion
Engel v. Vitale (1962)
Teaching of Intelligent Design?
16. Free Exercise Clause
Polygamy (Reynolds v. US)
Amish & compulsory
education laws (Wisconsin
v. Yoder)
Jehovah’s Witnesses must
salute the flag (West
Virginia State Board of
Education v. Barnette)
Using peyote
(Employment Division v.
Smith)
19. Amendment IV (privacy)
III: Quartering troops
Searches & seizures—
must be reasonable
Probable cause
Search warrant
Signed by judge
Exclusionary rule
20. Right to Privacy
Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Ohio v. Akron Center (1990): parental consent
under 18
Lawrence v. Texas (2003): Adults have a right to
consensual sexual relations with one another
21. Is A Warrant Needed?
Belief that someone committed a felony?
Yes
Crime committed in presence of police?
No
Garbage cans
Yes (unless garbage has been taken out)
Drug test
No
Vehicle
No (even things in the vehicle)
Wiretap
Yes
22. More Amendments…
Amendment V: self-
incrimination (Miranda v.
Arizona)
Amendment V: double
jeopardy (both state & federal
laws violated?)
Amendment VI: assistance of
counsel (Gideon v.
Wainwright) 5 years
23. Amendment VIII
Against cruel & unusual punishment
Punishment must fit the crime
Death penalty?
Furman v. Georgia (1972): unconstitutional
Gregg v. Georgia (1976): constitutional if death
penalty if certain procedures are followed—separate
deliberations; specific crimes; appeals)