OConnor

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OConnor Sabato,Chapter 4 Civil Liberties

• Presentation 4.1 The Role of the Bill of Rights
  in American Govt.

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Key Topics

• Introduction
• The Bill of Rights
• The Incorporation Doctrine
• The Selective Incorporation of the Bill of
  Rights
  
• 1st Amendment Guarantees Freedom of Religion
• The Establishment Clause
• The Free Exercise Clause

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Introduction

• The opening story about an elementary school
  principal announcing a random search of
  students
  
• Why did the principal feel he/she had a right to
  search students?
  
• Do students have rights against random searches?
• Why was the teacher fired? Were her rights
  violated?

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1a) What does the opening story tell you about
the nature of civil liberties?

• Individual rights must be balanced against other
  values
  
• Expectation of privacy must be weighed against
  the safety of the community
  
• Isaiah Berlin Freedom for the wolf is death for
  the sheep!

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1b) The Bill of Rights the Framers

• The framers of the Constitution could not foresee
  the evolution of society
  
• They did not have abortion, gay rights, or the
  right to die in mind

James Madison is widely credited as the
primary architect of the Bill of Rights
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1bi) The Nonabsolute Nature of Civil Liberties

• Courts and lawmakers are often required to
  balance competing interests
  
• Do we want individual liberty or safety
• Are we willing to allow the FBI to tap private
  citizens phone lines in order to keep us safe
  from terrorists?

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1bii) The Problem of Irreconcilable Claims

• Two liberties are often in conflict
• The right of people to seek provide abortion
  conflicts with Prolife supporters belief that
  abortion is murder

Members of People for Life picketing
Sen. Arlen Specter. Picture from the
People for Life website.
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1c) What are Civil Liberties?

• Personal rights freedoms that the federal govt.
  cannot take away
  
• Civil liberties place constraints on the ability
  of the govt. to arbitrarily control the beliefs
  or behavior of its citizens
  
• The existence of civil liberties provides the
  basis for limited govt.

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1c) Rights as Trumps

• American constitutional scholar Ronald Dworkin
• Dworkin argues that rights are like trumps in a
  game a cards
  
• Cannot be abridged w/out violating the rule of law

NYC University Prof. Ronald Dworkin. Picture cou
rtesy NYCU
Website.
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2) The Bill of Rights

• Most state constitutions included bill of rights
• The new Constitution was viewed by many in the
  states as a threat to the rights and liberties of
  citizens
  
• Anti-federalists did not trust the new govt.

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2a) The Framers the Bill of Rights

• The framers debated whether or not to include a
  national bill of rights
  
• The motion was rejected as a potentially
  dangerous expansion of national power
  
• The national govt. was viewed as a mechanism for
  coordinating the states
  
• Not intended to directly regulate citizens

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2ai) The Ratification Process the Bill of Rights

• Anti-federalists fought hard for inclusion of a
  bill of rights
  
• Several states only ratified the Constitution on
  the condition that a bill of rights be included
  
• James Madisons role
• Campaigning in an anti-federalists district
• Promised to lend his talents to secure a
  national bill of rights
  
• Won the race and kept his promise (a most
  nauseous task, he was reported to have said)

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2aii) The Significance of the 9th 10th
Amendments

• The first ten Amendments to the Constitution
  contain the Bill of Rights
  
• The legalistic implications of the 9th Amendment
• The listing of rights does not mean that other
  rights do not exist
  
• The 10th Amendments reserved powers clause
• Powers not delegated to the natl. govt. are
  reserved to the people and the states

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2b) The Incorporation Doctrine

• Barron v. Baltimore (1833) the Supreme Court
  ruled that the Bill of Rights applied to the
  national govt. not the states
  
• The ratification of the 14th Amendment
  fundamentally changed the relationship between
  the Bill of Rights and the states
  
• Implied that the states must respect some or all
  of the protections in the Bill of Rights

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2bi) The Supreme Court the 14th Amendment

• The Supreme Court refused to interpret the 14th
  Amendments due process clause as making the
  Bill of Rights applicable to the states
  
• In 1897, however, the SC began to increase its
  jurisdiction over the states
  
• Imposed a substantive due process standard
• Demanded that states demonstrate a valid
  exercise of its police powers to regulate
  citizens health, welfare, or public morals

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2bii) Gitlow v. New York (1925)

• Several states passed sedition laws that banned
  speech critical or disrespectful of govt.
  
• Benjamin Gitlow, a socialist, printed
  distributed a manifesto calling for the overthrow
  of the American govt.
  
• Convicted in NY, appealed to the Supreme Court,
  claiming his right to speech had been violated

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2biii) Gitlow cont.

• The Supreme Court upheld the conviction
• However, the Court also concluded that the states
  were not completely free to limit forms of
  political expression
  
• Some freedoms are fundamental therefore
  protected by the due process clause of the 14th
  Amendment

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2biv) Near v. Minnesota (1931)

• Jay Near published a weekly Minneapolis newspaper
  that regularly printed vicious attacks on various
  groups
  
• Arrested under a state criminal libel law that
  prohibited malicious, scandalous or defamatory
  publications
  
• Near appealed his conviction, and the Court held
  that, while liberty of the press may be abused,
  immunity of the press from previous restraint is
  still necessary

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2c) Selective Incorporation

• The Court has chosen to incorporate only the most
  important freedoms
  
• Therefore, some but not all of the protections in
  the Bill of Rights have been made applicable to
  the states
  
• The Court applies a heightened standard of review
  for freedoms it views as essential for a
  functioning democracy

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2ci) Palko v. Connecticut (1937)

• Palko robbed a music store and killed a police
  officer
  
• Jury convicted of 2nd-degree murder sentenced
  him to life in prison
  
• The state appealed, arguing confusing jury
  instructions had led to a bad verdict
  
• Palko was retried, convicted of 1st-degree
  murder, and sentenced to death

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2cii) Palko cont.

• Palko appealed, arguing that the 2nd conviction
  violated the 5th Amendments prohibition of
  double jeopardy
  
• The Court upheld the 2nd conviction, arguing that
  protection from double jeopardy was not an
  essential freedom
  
• Palko was executed in 1938

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3) 1st Amendment Guarantees

• 63 of Americans belong to a church or synagogue
• Still, many public figures fear that America is
  becoming an atheist nation
  
• The dangers of infusing religion into politics

Is religion important to you?
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3i) Religion in the Colonies

• Many of the framers were deeply religious
• However, many were non-religious, and viewed God
  as similar to a watch-maker, who created the
  world took no part in its day-to-day workings
  
• Many colonists fled to the New World to escape
  religious persecutions however, most colonies
  actively persecuted religious minorities

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3ii) Colonial Intolerance

• Most colonies were intolerant of religious
  dissent
  
• Example of the Salem Witch Trials in
  Massachusetts colony in 1692

The hanging of Bridget Bishop, June 10
1692. Picture courtesy Famous Am. Trials
website.
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3iii) Colonial Intolerance cont.

• Colonies angered when the British Parliament
  established Anglicanism Roman Catholicism as
  the official religions in the colonies
  
• The 1st Continental Congress sent a letter of
  protest that Catholicism be one of the official
  religions

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3iv) Religion and the Constitution

• The reality of religious diversity
• Puritans in MA
• Quakers in PA
• Catholics in Maryland
• Article VI no religious Test shall ever be
  required as a Qualification to any Office or
  Public Trust under the United States

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3v) The First Amendment

• Begin, Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof.
  
• Establishes provisional boundaries to the state
  regulation of religion
  
• However, those boundaries are not absolute

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3a) The Establishment Clause

• Conflict over the meaning of the establishment
  clause
  
• How high is the wall of separation between
  church and state?
  
• Have allowed state subsidies of private religious
  educational institutions
  
• However, the Court has consistently ruled that
  state-sponsored school prayer violates the
  establishment clause

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3ai) The Lemon Test

• Based on Lemon v. Kurtzman (1971) Practices are
  constitutional if
  
• Secular purpose
• Neither advanced nor inhibited religion
• Did not foster excessive govt. entanglement
  with religion
  
• Since 1980s, the Court has shown a willingness
  to lower the wall of separation ignore the
  Lemon test

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3aii) Establishment cont.

• Historically, the Court adopted books only to
  state aid of religious institutions
  
• Books go to children, not the schools
• In 2000, the Court voted to uphold a federal aid
  provision extending books and computers to
  religious schools
  
• The school voucher issue also clearly touches
  on the establishment clause

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3b) The Free Exercise Clause

• Guarantees that individuals are free to worship
  as they see fit within reason!
  
• When state laws conflict with religious law and
  practices, the state can limit the practice
  
• However, the state must show that a legitimate
  purpose is served in the prohibition

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3bi) Practices Banned

• Polygamy marrying multiple partners is banned
• Drug Use using drugs as part of a religious
  ceremony can be prohibited
  
• Snake Handling handling poisonous snakes can be
  prohibited

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3bii) Prohibition or Accommodation?

• The Court has generally concluded that state
  interests outweigh free exercise interests
  
• Should states seek to promote greater citizen
  involvement in religion?
  
• What goals are served by state neutrality in the
  exercise of religion?