U.S. GOVERNMENT & POLITICS, SPRING 2011

CIVIL LIBERTIES: A FIRST EXAMINATION

OSY chapter 4; Woll 18 (Gideon v. Wainwright), 19 (Justice Holmes, Abrams v. United States), 20 (New York Times v. Sullivan), 26 (Engel v. Vitale)

Wednesday, March 23

Key terms from OSY chapter 4: civil liberties, Bill of Rights, Ninth Amendment, Tenth Amendment; incorporation doctrine/selective incorporation, fundamental freedoms; due process clause of 14^th Amendment, substantive due process; Gitlow v. New York; First Amendment; establishment clause, free exercise clause, Engel v. Vitale, Lemon test, controversies over meaning of establishment clause and free exercise clause; prior restraint, clear and present danger test (Schenck v. U.S.), direct incitement test (Brandenburg v. Ohio), symbolic speech, hate speech (R.A.V. v. City of St. Paul); libel, slander, New York Times Co. v. Sullivan, fighting words, obscenity, Miller v. California; freedom of assembly and petition; Second Amendment, U.S. v. Miller, D.C. v. Heller; 4^th Amendment; reasonable suspicion versus probable cause; 5^th Amendment, Miranda rights; double jeopardy clause; exclusionary rule (Weeks v. U.S., Mapp v. Ohio); right to counsel (Gideon v. Wainwright); 8^th Amendment and Furman v. Georgia; 9^th Amendment and the right to privacy; Griswold v. Connecticut, Roe v. Wade, Planned Parenthood of Southeastern Pennsylvania v. Casey (undue burden test), Gonzales v. Carhart, Lawrence v. Texas; post-September 11 controversies over civil liberties, USA Patriot Act and conflicts with constitutional rights

KEY CIVIL LIBERTIES CONCEPTS & THEMES

• Bill of Rights establishes basic civil liberties and civil rights; all key provisions in amendments 1 through 8 apply to the national government only, as originally written

• Doctrine of selective incorporation (based on 14^th Amendment) has applied most (but not all) rights to state governments as well (fundamental freedoms are incorporated)

• States can expand on rights given in the Bill of Rights (e.g. more protection for free speech), and in some cases can refine or further specify rights and meanings

• The First Amendment alone raises numerous questions about the extent and limits (if any) to be placed on many fundamental freedoms – religion, speech, press, assembly, petitioning the government. Three of today’s Woll readings (19, 20, 26) focus on aspects of the First Amendment.

• The religion clauses of the First Amendment: Noninterference by government in religious matters seems to come closest to a clear understanding of what the First Amendment intended (typically described, misleadingly, as a “wall of separation” between church and state). The case Engel v. Vitale is an example of enforcing the idea that religious expression can be seen as coercive (in this case, in the school setting) and thus constitute an establishment (which is unconstitutional).

• Rights of accused persons have been expanded, for the most part, over time through Supreme Court rulings; Gideon v. Wainwright (Woll 18) is a significant example, broadening the scope of the 6^th Amendment’s right to counsel for persons accused of crimes

• Right to privacy is (according to some justices) founded in the 9^th Amendment and implied by several other amendments. The right to privacy underlies the reasoning in cases about birth control, abortion, and sexual orientation. Controversies abound – did the Framers intend a right to privacy (and if so why is it not explicitly stated in the Constitution?); if a right to privacy exists, how far does it extend? Monday, April 4 class readings will focus on privacy rights and the key Supreme Court cases.
• The Supreme Court continues to hear cases involving all aspects of Bill of Rights, coming primarily from constitutional challenges to state and local laws, or occasionally to practices of private groups

A LITTLE CIVIL LIBERTIES “QUIZ”

Answer these as best you can, working with your neighbors; you may use the book, but try to answer each one first before consulting OSY chapter 4.

1. According to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), states can limit abortions under what circumstances?

2. What amendments are used to establish the right to privacy?

3. Prior restraint of speech, especially critical to freedom of the press, is almost never tolerated by the Supreme Court. Name one case that helps establish this principle.

4. Why is burning the flag a constitutionally protected act, according to the Supreme Court?

5. The standard to be used by police in stopping a suspected criminal is ______________, which is a lower standard than ___________ .

6. The Bill of Rights was first incorporated in the 1925 case _____________.

7. Furman v. Georgia (1972) interpreted the ______ Amendment to declare capital punishment as cruel and unusual (and therefore unconstitutional) because ____________________________.

8. What is the direct incitement test, and what case articulates it?

9. Prayer in school was banned in the case _______________ and prayer has also been ruled unconstitutional in what other settings?

10. Searches and seizures are the subject of the _________ Amendment.

11. Procedures to be used in trials of individuals accused of crimes are outlined in at least two amendments: ______ and _______

12. The major case that defines obscenity, and allows states to regulate obscene speech, is ________________ (1973).

13. The __________rule: Illegally seized evidence cannot be used in a trial, according to ________________ (1914)

14. Privacy rights extend to sexual conduct between consenting adults, according to the 2003 ruling in ______________.

Civil liberties question: Is there a specific form of constitutional interpretation (remember these? Strict construction or original intent, loose construction, judicial restraint or judicial activism, the attitudinal model, the strategic model, influence of public opinion) that seems to be used to decide civil liberties cases?

Ask your own civil liberties-related questions here.