Lecture: Civil Liberties
Linked directly to the pre-Revolutionary desire for natural rights was the idea that a right or liberty was first and foremost a limitation on any government’s ruling power.
Civil Liberties- are the personal rights and freedoms that government CAN NOT take away-by the law, the Constitution or judicial interpretation unless there is a very important (compelling) reason to do so.
Civil Rights- are the rights that the government MUST give to its citizens- whether they are the rights of due process or equal protection that come from the 14th amendment.
Because there are not many specific words or guidelines in the Bill off rights, it is up to the federal courts to interpret the true nature of what exactly constitutes civil liberties and rights. As the court’s interpretation change, so do our rights.
Historical Background
A lot of the newly established state governments already protected citizen’s personal liberties. The big question for the Anti-Federalists was whether or not the NATIONAL government would do the same. Many of the anti-federalists felt they could trust their own state legislatures but not the federal government.
Many Federalists like James Madison, felt that it wasn’t necessary to add a Bill of Rights to the Constitution. For one thing, a listing of liberties would necessarily EXCLUDE other liberties and second; the federal government had no powers in the Constitution to actually regulate things like speech, religion, etc.
Limitations of the Bill of Rights
Its important to remember that the Bill of Rights only limited the powers of the NATIONAL government, not the states. The court reasoned that the states already all had their own bill of rights and they were closer to the people anyway, so there was no need for the federal bill of rights to apply to the states. Barron v. Baltimore (1833) upheld this principle. It wasn’t until 1868 that the 14th amendment began to suggest in Section 1 that the states might be included in the first 10 amendments.
Religion
Despite the fact that many colonists fled Europe to escape religious persecution, most colonies actually persecuted those who were not Puritans or Protestants.
Yet distaste for an established national religion (Anglicanism or Catholicism, etc.) led the Founders to create Article VI, which stated that there could not be any religious tests before one was sworn into political office.
The First amendment guarantees freedom of religion in two clauses: the establishment clause (no government sponsorship of religion) and the free exercise clause (government can’t interfere in your religious beliefs). Yet the First Amendment’s treatment of religion is quite short and vague- only 16 words that seem to spell out the basis for both of these clauses. Because these 16 words are not self-interpreting, the Supreme Court has decided what is/is not constitutional when it comes to church/state matters.
The Establishment Clause
This clause directs the national government not to set up an official religion. This was the first time in history that a government had no official religion. Yet this doesn’t mean that the relationship between church and state is hostile. Nearly all church-owned property and contributions are tax-deductible; sessions of congress are opened with a prayer; coins have in “god we trust” on them and Congress added the words “One nation under God” in 1951 to the pledge of Allegiance which is announced at public schools. How high and strong the wall between church and state should be has been a source of controversy for the Supreme Court. The court for the most part, has taken the words of Jefferson (there should be a “wall between church and state”) as a guideline to decide matters of government involvement in religion. In 1971, in a case called Lemon v. Kurtzman, the Court set up a test to determine the constitutionality of laws when it came to religion. 1. Government laws or programs should have a secular purpose. 2. The aim of these laws must not be to advance or prohibit religion. 3. The government may not entangle itself excessively with religion.
Prayer in school has been one of the most contentious issues dealing with the establishment clause, and almost every case has shown that prayer is not allowed in public schools. In the landmark case, Engle v. Vitale (1962), the court struck down the 22 word non-dominational prayer read over the loudspeakers in New York public schools. The Court 30 years later (Lee v. Weisman) also struck down nonsectarian prayers at public school graduations. The court likened both school prayer and graduation prayer as “captive audience” violation of the constitution. That is, the state cannot impose religion on the people). Congress in 1984 tried to correct what they saw as an imbalance between church and state when it passed the Equal access act of 1984. This act allowed religious groups to meet on campus before and after school and gave them the right to form clubs.
The Free-Exercise Clause
This clause basically guarantees that the national government will not interfere with a citizen’s practice of their religion. Yet the Court has also stated that this clause “embraces two concepts-freedom to believe and freedom to act. The first is absolute, (but) the second cannot be. Conduct remains subject to (the) regulation of society.”
In other words, just like with speech, one has an absolute right in belief but not in action. If your beliefs end up hurting somebody else- the court and the state will step in. In the case Reynolds v. US (1879), a Mormon man was convicted of bigamy and his sentence held up by the Court which ruled one may not break federal law and then use his religious belief as an excuse.
A lot of religious groups and conservatives have complained that the Court has gone too far in stopping the free exercise of religion. In the 1990 case, Employment Division v. Smith, the Court upheld the firing and denial of unemployment compensation to 2 Native American workers who ingested peyote in a religious ceremony. In this case, which angered a lot of conservatives, the Court ruled that the state of Oregon did not have to show a “compelling interest” in its firing and denial of benefits. The response to Employment Division v. Smith was an example of pluralism in action and the power of congress.
Just like when Congress passed the Equal Access Act of 1984, to protest the Court’s rulings on school prayer, the Congress responded with the Religious Freedom and Restoration Act in 1994, which reinstated the strict scrutiny test as the judicial standard of review when it came to free exercise cases. In other words, Congress was saying that it had the final word when it came to free exercise cases-making it easier for people to claim religious belief in court. Yet the court struck back in 1997, declaring the RFRA to be unconstitutional.
Free Speech
Historically, one of the most controversial areas of constitutional interpretation has been in the Court’s interpretation of the clause that states that Congress “shall make no law abridging the freedom of speech, or of the press.” Like the establishment and free exercise clauses, the Court has ruled that the protections of the First Amendment are not absolute. Generally speaking, thoughts have received the most protection, words the next most, and finally actions the least amount of protection.
In the US, the government has no legal right to punish Americans for what they think- even if those thoughts are unpopular.
Words, or speech, which stand between thoughts and deeds, are subject to some sort of restraint. That is, speech that is obscene or libelous, seditious has been interpreted by the Court as not being constitutionally protected.
Schenck v. US (1919)- Schenck, the secretary for the Socialist Party, was tried and convicted for printing, distributing, and mailing anti-war leaflets to men eligible for the draft in WWI. In 1919, his conviction for urging others to resist the draft was upheld by the Court. The Court ruled that Congress, by passing the Alien and Sedition Act of 1917 could prevent certain types of speech if it was deemed a threat to national security. According to the clear and present danger test, the leaflets in peacetime would have been constitutional, but in the midst of a war, the “tendency” toward incitement was too great for the Court to stand. Six years later, in Gitlow v. New York (1925), the Court upheld another conviction against an anti government protestor. Yet what is important about this case isn’t that the person’s conviction was upheld by the court. It is that the court stated that the first amendment’s speech and press clauses applied to the states, not just the federal government. In other words, the Court began to incorporate the 1st amendment into the 14th amendment so it applied to the states as well as the national government. In the next few years, almost every amendment in the bill of rights- except the 2,3,parts of 5, 7, and part of 8 were applied to the states in what is called the incorporation doctrine.
The court’s interpretation of the free speech clause held throughout the conservative 1940’s and 1950’s until the case, Brandenburg v. Ohio (1969). In this case, the Court ruled that only direct incitement was unconstitutional, that is, the government cannot regulate any speech unless it could prove that the speech was leading to imminent danger to law and order or national security.
Symbolic expression is nonverbal communication that has occasionally been upheld by the courts. In Tinker v. Des Moines (1969), the court ruled that public school students who were wearing black arm bands could not be suspended because that would be a violation of their freedom of expression. The Court also stirred up a lot of resentment in 1989 when in a case called Texas v. Johnson (1989), the court ruled that flag burning also was constitutional speech.
Yet the Court has not always ruled that any type of expression is constitutional. The court has struggled with the dilemma of order v. liberty when it comes to the cases of obscenity and pornography.
Obscenity: those things considered “disgusting, foul or morally unhealthy”
Pornography: “depictions of sexual lewdness or erotic behavior”
In the case, Chaplinsky v. New Hampshire (1942), the Court set out the guidelines for distinguishing what was protected speech and what was not. According to the Court, any speech or expression that lacked any “social or moral value” could be banned. The Court had followed up until the 1950’s the English Common Law tradition concerning obscenity by following a ruling that had been established in 1868. This case defined obscenity as an expression that easily “ deprive and corrupt those whose minds are open to such immoral influences…”
In 1957, in the Roth v. US, Court abandoned this approach and claimed that obscenity was any expression “utterly lacking any social importance whatsoever” that the “average person” would find emphasizing “prurient interests only”. That is, the expression only has a sexual element to it. Yet, in many ways, the Roth test brought with it more questions than answers: exactly what was prurient? And how could one prove that some expression “utterly lacked social value”?
In fact, the Roth test was so hard to prove, that some hardcore pornography in the 1960’s began to pass through the Courts, prompting complaints by the Nixon administration who promised to clean the excesses of the 1960’s in his campaign for President in 1968.
Once elected, Nixon made 4 appointments to the Court, including Chief Justice Burger. In Miller v. California (1973) the Court began to create rules designed to make it easier for the states to regulate obscene materials and give local communities more power to declare what the feel is obscene. The Miller test included the following: 1. Did the work in question violate state law in its depiction of sex? 2. Did the expression violate the SLAP test? So today, if certain local communities do not like a piece of art in the museum or nude dancing facilities, the Court has allowed those things to be banned if they violate the SLAP test.
Due Process
Is one of the oldest constitutional principles- going all the way back to the Magna Carta in 1215 in England. States that the actions of government must be conducted according to the rule of law. It is supposed to protect all Americans against arbitrary rule by the government. The Bill of Rights was originally set up to protect those accused of political crimes (Americans remembered what the British did to them). There are two types of due process: 1. Procedural- government must apply the same procedures for all citizens when applying, interpreting, and enforcing the law. This type of due process limits the degree to which the government can interfere with a person’s life, liberty or property. For example, the Bill of Rights provides procedural due process for people accused of crimes at every step of the process: 4th (evidence gathering); 5th and 6th (arrest and questioning); 8th (bail and punishment) Any violations of these liberties could mean the case is dismissed. 2. Substantive due process means the substance or purpose of the laws must be constitutional. Government shouldn’t be able to regulate areas like privacy (beliefs, who your friends are, where you live and work, travel, marry, etc,)
4th Amendment: was originally set up to protect against searches of religious and political dissenters (British used to have “writs of assistance” which meant they could always break into your home in search of anything). So although he 4th amendment deals mainly with privacy and searches- it does not forbid searches-just unreasonable ones. The Court set up one of the most controversial rules of law ever when it created the exclusionary rule (US is the only country in the world to have this) in the case Mapp v. Ohio. The main principle of the exclusionary rule is to exclude any evidence seized illegally by the police (fruit off the poison tree). The logic being if the cops are forced to gather evidence properly, their competence will be rewarded in a conviction. If they ignore the rights of defendants- they will be punished by a judge’s acquittal or dismissal of the evidence. The Mapp decision was historic in that it required all levels of government to operate according to the exclusionary. But he Court realized that most searches are done without warrants and began to create exception to the exclusionary rue to protect the police. There are basically nine: plain view, probable cause, good faith, emergency, immediate control, stop and frisk, consent, hot pursuit, vehicle search.
5th amendment: During the 17th century, special courts in England forced confessions of heresy and sedition from religious dissenters. A lot of the Puritans who were victims of this continued this practice when they established their colonies on the East Coast. The Founders did not want to repeat the same mistakes and created the 5th amendment in order to solidify a fundamental principal of Anglo-American justice: no person should be obligated to prove his/her innocence. Rather, the burden is placed on the state to do that- beyond a reasonable doubt. Federal and state laws require that police officers take those whom they arrested before judges or magistrates within a specified time as well as informing the defendants of their constitutional rights. The biggest case that enforced this rule was Miranda v. Arizona. The court based its decision on the 5th amendment’s privilege against self-incrimination. The court ruled that if a suspect is placed in custody and cannot leave, they must be warned f their rights before they are questioned. In another landmark case, Gideon v. Wainwright, the court ruled that anyone suspected of a crime and placed under arrest should be given a lawyer, even if they can’t afford one.