Does the Constitution provide protection from injustices?

LESSON 7LESSON 7Civil Liberties & Civil Rights

Defining and Protecting Your Rights and Liberties

I. DEFINING CIVIL LIBERTIES AND CIVIL RIGHTS

A. Original Constitution: No mention of protection of individual rights and liberties from government abuse

B. BILL OF RIGHTS1. First ten Amendments to Constitution2. Written to restrict the national government3. Identifies two types of rights: (1) CIVIL

LIBERTIES and (2) CIVIL RIGHTS4. Most are “incorporated” into state and local

laws they are reflected in state/local legal codes

Defining and Protecting Your Rights and Liberties

C. Civil Liberties vs. Civil Rights

1. CIVIL LIBERTIES: Basic freedoms considered to be the birthright of all individuals cannot be taken away or infringed upon by government

Defining and Protecting Your Rights and Liberties

2. CIVIL RIGHTS: Rights that come with being a member of society

• Not protections from government

• Guarantees by government of equal rights and fair treatment under the law

• Associated with positive acts of government

Differences betweenCivil Liberties and Civil

RightsCIVIL LIBERTIES

• Freedom of speech

• Freedom of religion

• Freedom of the press

• Freedom of assembly

• Freedom from unreasonable search and seizure

CIVIL RIGHTS• Right to due process

• Right to trial by jury

• Right to legal counsel

• Right to vote

• Right to petition the government for a redress of grievances (appeal process)

What basic principles form the basis of the

Constitution?II. BASIC PRINCIPLES OF THE

CONSTITUTION: Six basic principles outline the Founders’ belief that controls must be placed on government

• POPULAR SOVEREIGNTY: People are the most important source of governmental power

• SEPARATION OF POWERS: Power is distinct but shared – legislative, executive, and judicial

What basic principles form the basis of the

Constitution?• CHECKS AND BALANCES: Division of power

among the three branches ensures that no one person or group would assume all power

• LIMITED GOVERNMENT: Government does not hold all power and does only the things the people want it to do

• FEDERALISM: Division of power between states and Washington reflects Founders’ desire to balance liberty and order

• JUDICIAL REVIEW: The power of the Supreme Court to determine the constitutionality of an action of the government (Marbury v. Madison, 1803)

History

• In response to Anti-Federalist demands for provisions to secure individual and states’ rights, Congress met in New York City in 1789 and proposed 12 amendments to be submitted to the states for their approval.

• 10 of the 12 proposed amendments were approved by 3/4 of the state legislatures and added to the constitution in 1791.

Amending the U.S. Constitution

1st Amendment - Basics

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

• Freedom of Religion• Government may not establish an official national religion

• Separation of Church and State

• Freedom of Speech• Must be truthful

• Freedom to Petition the Government• Ask the government to review a perceived problem

1st Amendment - Basics

• Freedom of Assembly• To meet peacefully to discuss a perceived

problem

• Freedom of the Press• The media has the right to expose and comment

on the conduct of the government, its officials, and common individuals

2nd Amendment - Basics

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

• Citizens have the right and need to have guns• Intended to allow citizen militias to be equipped

to fight without the need of the government to supply guns

• Farmers and frontiersmen needed guns for protection and to supplement their food supply

3rd Amendment - Basics

No Soldier shall, in time of peace, be quartered in any home, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

• Protection against troops being quartered in homes during peacetime

• Not a major issue in modern times, and therefore has never been enforced by SCOTUS

4th Amendment - BasicsThe right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• To be free of unreasonable searches and seizures• Need specific search warrants issued on “probable

cause”

5th Amendment - Basics

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life liberty, or property, without due process of law; nor shall have private property taken for public use, without just compensation.

• The right, if accused of a crime:• To be formally investigated and accused by a Grand Jury• Not to be tried twice for the same crime (double jeopardy)• Not to be forced to give evidence against oneself or family

member (self-incrimination)• To be afforded Due Process of Law

• Receive a fair and speedy trial protected by common legal procedures

5th Amendment - Basics

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be witness against himself, nor be deprived of life liberty, or property, without due process of law; nor shall have private property taken for public use, without just compensation.

• Receive fair compensation for your property if the government needs to take it from you for public purposes (right to eminent domain)

6th AmendmentIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein that the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

7th Amendment

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.

6th & 7th Amendments - Basics

6th Amendment6th Amendment• The right if accused of a crime to:

• Be told the charges• Receive a “speedy” and public trial

with an “impartial” jury• Face the prosecution witnesses• Have the services of a defense lawyer• If necessary, force defense witnesses to

testify in court through legal process

6th & 7th Amendments - Basics

7th Amendment• The right to a jury trial in many

types of non-criminal cases•Cases that do not involve bodily

harm or meaningful theft but involve meaningful wrong upon others (usually financial claims or damages)

8th Amendment - Basics

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

• The right to protection against “excessive” bail and fines and “cruel and unusual” punishment.

9th Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

9th & 10th Amendments - Basics

9th Amendment• The guarantee that other rights

not listed in the Constitution are protected.• If the authors forgot about these

rights they still belong to the states or the people, not the Federal Government.

9th & 10th Amendments - Basics

10th Amendment• The guarantee that the people or

the states have all the powers not given to the national government or denied to the states•All powers not mentioned in the

Constitution are reserved for the states or the people

How have early challenges in enforcing the Bill of Rights been

addressed?IV. EARLY CHALLENGES IN ENFORCING

THE BILL OF RIGHTSA. Bill of Rights offers broad rights and

liberties on paper, but needed to be interpreted by SCOTUS (Supreme Court)

B. MARBURY v. MADISON (1803): Establishment of judicial review laid foundation for enforcement of Bill of Rights

How have early challenges in enforcing the Bill of Rights been

addressed?C. FOURTEENTH AMENDMENT (1868):

Attempt by Congress to restrict states from limiting civil rights, especially with blacks

• First interpreted narrowly by the courts PLESSY v. FERGUSON (1896)

• Equal Protection Clause preserved by “separate but equal” public facilities

• New interpretation of Fourteenth Amendment spurred by work of civil rights groups NAACP, ACLU

• BROWN v. BOARD OF ED. OF TOPEKA (1956): “Separate but equal” facilities provided by segregated schools not truly equal

How have early challenges in enforcing the Bill of Rights been

addressed?V. FREEDOMS OF THE FIRST

AMENDMENTA. FIRST AMENDMENT: Most important

amendment of the Bill of RightsB. FREEDOM OF RELIGION

1. Two parts: Establishment Clause and Free Exercise Clause

• ESTABLISHMENT CLAUSE: Guarantees separation of church and state (government)

• FREE EXERCISE CLAUSE: All people are free to exercise the religious practices of their choice, and free to follow no religion however, if faith conflicts with the law of the land (Constitution), the law will prevail

How have early challenges in enforcing the Bill of Rights been

addressed?C. FREEDOM OF SPEECH: Linked

to freedom of expression identified in the First Amendment

1. Court has supported freedom of speech except in cases where speech is harmful to others

• LIBEL: Written form of speech• SLANDER: Spoken form of speech• OBSCENITY: Speech offensive to

conventional standards of decency

How have early challenges in enforcing the Bill of Rights been

addressed?2. Speech does not have to be written to

receive protections of First Amendment SYMBOLIC SPEECH

3. The First Amendment was also intended to protect the right of the press to criticize the government

• PRIOR RESTRAINT: An attempt by government to prevent the publication or broadcast of material considered harmful only allowed if it does not impact national security

• Journalists cannot be guilty of libel unless their errors in reporting were intentional and meant to do harm

What does it mean to be granted “due process”?

PRINCIPLE OF DUE PROCESS • 4th, 5th, 6th, 7th & 14th Amendments • Protection of “life, liberty, and property”• Laws must be applied fairly and equally to

all people, especially to someone accused of a crime

Procedural due process: How laws are carried out

Substantive due process: Reasonableness of laws

How do we protect the accused from being punished for deeds they didn’t

commit?V. CONSTITUTIONAL

PROVISIONS FOR DUE PROCESS

A. WRIT OF HABEAS CORPUS• “Have my body – just tell me

why!”• Court order directing prisoner to

court to be informed of charges• Jailer must show cause for holding

or immediately release prisoner• Congress can suspend habeas

corpus during times of rebellion or invasion (ex: Civil War, WWII, 9/11)

How do we protect the accused from being punished for deeds they didn’t

commit?B. EX POST FACTO LAWS:

Laws passed after act has been committed cannot be enforced on previous actions “After the fact” laws

C. BILL OF ATTAINDER: Law that declares person or group guilty of crime without court trial forbidden under Constitution

How does the Constitution provide protections during

investigations?VI. 4th AMENDMENT: LIMITS

ON INVESTIGATIONSA. 4th Amendment: Protection

against illegal searches and seizures

B. When are searches reasonable?

1. Police have a search warrant2. Individual has been lawfully

arrested

How does the Constitution provide protections during

investigations?C. Exceptions to warrant

requirement Automobiles “Terry Search” (Terry v.

Ohio, 1968): Brief investigatory stops

Searches following lawful arrest

Searches for evidence Border searches Plain-view exception Exigent circumstances

urgent or critical situations (ex: burning house, criminal escaping capture)

How does the Constitution provide protections during

investigations?D. EXCLUSIONARY

RULE: Evidence gathered illegally cannot be used in a trial (Weeks v. US, 1914; Mapp v. Ohio, 1961) exceptions can be granted

How does the 5th Amendment provide further protection for the

accused?VII.5th AMENDMENT:

CHARGING SOMEONE WITH A CRIMINAL OFFENSE

A. INDICTMENT: Formal charge against accused must follow presentation of strong evidence

B. DOUBLE JEOPARDY: Amendment prohibits being charged with same crime twice

How does the 5th Amendment provide further protection for the

accused?C. MIRANDA RIGHTS

(Miranda v. Arizona, 1966)

1. Protection against self incrimination cannot be compelled to be a witness against oneself

2. Police must advise of opportunity to have an attorney present

How is the protection of due process furthered by the Bill of

Rights?VIII.6th & 8th AMENDMENTS:

TRIALS & PUNISHMENTSA. 6th Amendment

1. Guarantees right to counsel (attorney) Gideon v. Wainwright, 1963

2. Accused have the right to a fair trial

• SPEEDY TRIAL ACT (1974): Federal trials must begin no later than 100 days from arrest

• Judges can ban media and spectators

Clarence Gideon

How is the protection of due process furthered by the Bill of

Rights?B. 8th Amendment

1. Protections for the accused after the trial has ended

2. Reasonable opportunity to be released on bail but what is “excessive” bail?

3. Forbids cruel and unusual punishment

Clarence Gideon