Civil Liberties Assignment

A. All key terms

Create diagrams, graphic organizers, or outlines that
display your understanding of:
B. The USA Patriot Act: Assess and Analyze
C. Why was there a need for the Bill of Rights?
D. Make arguments for and against adding a Bill of Rights to
the Constitutions.
E. How did the Bill of Rights come to apply to the states?
F. The incorporation of the Bill of Rights into the Fourteenth
Amendment (including specific court cases)
G. Explain the Establishment Clause as it relates to the
following: (freedom of religion, church-related schools,
school vouchers, school prayer, the Ten Commandments,
Teaching of Evolution, religious speech, etc)
H. The Free Exercise Clause
I. Freedom of Expression
J. Freedom of the Press
K. The Right to Assemble and to Petition the Government
L. Matters of Privacy
M. The Rights of the Accused versus the Rights of Society
N. Pros/Cons: Death Penalty
CHAPTER OUTLINE
I.

The Bill of Rights

The Bill of Rights comes from the colonists fear of a tyrannical government. Recognizing this fear,
the Federalists agreed to amend the Constitution to include a Bill of Rights after the Constitution

I.

was ratified. The Bill of Rights places limitations on the government, thus protecting citizens civil
liberties.
1. Extending the Bill of Rights to State Governments. As we have seen, federalism divides
power between the national government and the state governments. While the Bill of
Rights protected the people from the national government it did not protect the people
from state governments. In 1868 the Fourteenth Amendment became a part of the
Constitution. While this amendment did not mention the Bill of Rights, it would be
interpreted to impose, provision-by-provision, most of the constitutional protections of
civil liberties upon state governments during the twentieth century.
2. Incorporation of the Fourteenth Amendment. Beginning in 1925 the United States
Supreme Court began to apply specific rights stated in the Bill of Rights to state
governments. Table 4-1 in the text lists the incorporation of the specific rights. However,
not all of the rights have been applied to state governments at this time (e.g., the Second
Amendment).
Freedom of Religion
The First Amendment addresses the issue of religion from two different venues: (1) Congress
shall make no law respecting an establishment of religion, and (2) . . . or prohibiting the free
exercise thereof . . . Congress is prohibited from passing laws that establish governmental
involvement in religion, and Congress is prohibited from passing laws that deny people the right to
practice their religious beliefs.
1. The Separation of Church and StateThe Establishment Clause.
1.
Aid to Church-Related Schools. In general, such aid is prohibited by the
establishment clause.
2.
A Change in the Courts Position. Recently, however, in limited cases, the
Supreme Court has permitted aid that goes to all schools, religious or public.
3.
School Vouchers. A current controversy in this area involves whether school
vouchers can be used to attend religious schools. Some states attempts at education
reform include granting student vouchers that can be used at any public or private school,
including religious schools. The Supreme Court has ruled that this is permissible, since it
is the parents, not the state, that is choosing to subsidize the religious school.
4.
The Issue of School PrayerEngel v. Vitale. The Supreme Court ruled that
officially sponsored prayer in schools violates the establishment clause.
5.
The Debate over School Prayer Continues. However, the court has allowed
school districts to have a moment of silence when such an event was conducted as a
secular rather than religious occasion.
6.
Prayer outside the Classroom. The Supreme Court has ruled that students in
public schools cannot use a schools public address system to pray at sporting events. In
spite of this, students in some districts (especially in the South) deliberately violate the
ruling, or use radio broadcasts to circumvent the Courts decision.
7.
The Ten Commandments. The Supreme Court has split on the display of the Ten
Commandments, allowing it as part of larger display on the grounds of the Texas state
capitol, but disallowing it as an overtly religious display in Kentucky courthouses.
8.
Forbidding the Teaching of Evolution. The courts have interpreted the
establishment clause to mean that no state can ban the teaching of evolution or require
the teaching of creationism.
9.
Religious Speech. Public schools and colleges cannot place restrictions on
religious organizations that are not also placed on nonreligious ones. In Rosenberger, the
Supreme Court ruled that it was not constitutional for the University of Virginia to
provide support to most student organizations but to exclude a religious student
organization.

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I.

The Free Exercise Clause. The free exercise clause guarantees the free exercise of
religion. However the Supreme Court has allowed for some restraint here when religious
practices interfere with public policy. Examples of this include the ability of school
districts to select texts for students, and the requirement of vaccinations for school
enrollment.
1. The Religious Freedom Restoration Act. Passed by Congress in 1993, the act
required all levels of government to accommodate religious conduct unless
there was a compelling reason to do otherwise. In 1997, the Supreme Court ruled
the act unconstitutional.
2. Free Exercise in the Public Schools. Under the No Child Left Behind act of 2002,
schools can be denied federal funds if they ban constitutionally acceptable
expressions of religion.
Freedom of Expression
The First Amendment protects most speech, but some speech either falls outside the protection of
the First Amendment or has only limited protection.
1. No Prior Restraint. This is, in effect, censorship. Only in the most extraordinary of
circumstances has the government been allowed to completely prevent the press from
printing. If the publication violates a law, the law can be invoked only after publication.
2. The Protection of Symbolic Speech. Signs, gestures and articles of clothing that convey
meaning are constitutionally protected speech. One of the most controversial types of
symbolic speech is the act of burning the American flag.
3. The Protection of Commercial Speech. Advertisements have limited First Amendment
protection. Restrictions must directly meet a substantial government interest and go no
further than necessary to meet the objective. Advertisers can be liable for factual
inaccuracies in ways that do not apply to noncommercial speech.
4. Permitted Restrictions on Expression.
1.
Clear and Present Danger. During the 20 century, the Supreme Court has
allowed laws that restrict speech that allegedly would cause harm to the public. The
restrictions were principally imposed on advocates of revolutionary or dangerous
ideas. The original test, established in 1919, was the clear and present danger test.
2.
Modifications to the Clear and Present Danger Rule. In 1925, the government
received great power to restrict speech through the Courts enunciation of the bad
tendency rule. In 1951, however, the Court introduced the grave and probable danger
rule, which was somewhat harder for the government to meet. The current rule,
established in 1969, is the incitement test. This test allows restrictions on speech only
when the speech is an immediate incitement to illegal action, a standard that provides
protection to a significant amount of controversial speech.
ii.
Unprotected Speech: Obscenity
1.
Definitional Problems. The current definition stems from 1973. Material is
obscene if 1) the average person finds it violates community standards, 2) the work as a
whole appeals to a prurient interest in sex, 3) the work shows patently offensive sexual
conduct, and 4) the work lacks serious literary, artistic, political, or scientific merit.
2.
Protecting Children. The government can ban private possession of child
pornography, photographs of actual children engaging in sexual activity.
3.
Pornography on the Internet. Congress has made many attempts to shield minors
from pornography on the Internet, most of which have been found unconstitutional.
However, Congress may condition federal grants to schools and libraries on the
installation of filtering software to protect children.
4.
Should Virtual Pornography Be Deemed a Crime? Computer-generated images
of children engaging in sexual activity are not child pornography, since no actual
children are involved in producing the images.
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ii.

I.

I.

Unprotected Speech: Slander. One type pf speech that falls outside the protection of the
First Amendment is slanderstatements that are false and harm the reputation of another.
iii.
Campus Speech.
1. Student Activity Fees. Colleges may distribute such funds among student groups
even when groups espouse beliefs that some students would reject.
2. Campus Speech and Behavior Codes. The courts have generally found such
codes to be unconstitutional, but many continue to exist.
ii.
Hate Speech on the Internet. Restrictions on such speech exist in other countries, but not
in the United States.
Freedom of the Press
Freedom of the press is similar to freedom of speech.
1. Defamation in Writing. Key concept: libel, a written defamation of character. Public
figures must meet a higher standard of proof (actual malice) than ordinary people to win
a libel suit.
2. A Free Press versus a Fair Trial: Gag Orders. The courts have occasionally ruled that gag
orders may be used to ensure fair trials. To this end, the courts have said that the right of a
defendant to a fair trial supersedes the right of the public to attend the trial.
3. Films, Radio, and TV. Freedom of the press now includes films, radio, and television,
although broadcast radio and TV are not afforded the same protection as the print media.
Some language is not protected (filthy words) even though the language is not obscene.
I.
The Right to Assemble and to Petition the Government
The Supreme Court has held that state and local governments cannot bar individuals from
assembling. State and local governments can require permits for such assembly so that order can
be maintained. However, the government cannot be selective as to who receives the permit.
1.
Street Gangs. Some anti-loitering laws have passed constitutional muster; others have
not. Such laws cannot be vague.
2.
Online Assembly. Certain Web sites advocate violence against physicians who practice
abortion. The limits to such online assembly remain an open question.
More Liberties Under Scrutiny: Matters of Privacy
There is no explicit constitutional right to privacy, but rather the right to privacy is an interpretation
of the Constitution by the Supreme Court. The basis for this right comes from the First, Third,
Fourth, Fifth, Ninth and Fourteenth Amendments. The right was established in 1965 in Griswold v.
Connecticut.
1.
Privacy Rights in an Information Age. Individuals have the right to see most information
that the government may hold on them.
2.
Privacy Rights and Abortion. A major right-to-privacy issue is abortion rights.
1. Roe v. Wade. In Roe v. Wade (1973) the Supreme Court held that governments
could not totally prohibit abortions because this violates a womans right to
privacy. Government action was limited depending on the stage of the pregnancy:
1) first trimesterstates may require that only a physician perform the abortion;
2) second trimesterto protect the health of the mother, states may specify
conditions under which the abortion can be performed; 3) third trimesterstates
may prohibit abortions. In later rulings, the Court allowed bans on government
funds being used for abortions. It also allowed laws that require pre-abortion
counseling, a 24-hour waiting period, and for women under 18, parental or
judicial permission.
2. The Controversy Continues. The Court has approved various limits on protests
outside abortion clinics. A current issue is partial birth abortion, or intact
dilation and extraction, a second-trimester procedure. State governments and
Congress have attempted to ban the procedure, but so far, all bans have been
ruled unconstitutional. In 2006, South Dakota banned almost all forms of

abortion, legislation that is almost certain to put the Supreme Court in the
position of having to reconsider Roe v. Wade.
ii.
Privacy Rights and the Right to Die. In Cruzan v. Director, Missouri Department of
Health (1997) the Supreme Court decided that a patients life support could be
withdrawn at the request of a family member if there was clear and convincing
evidence that the patient did not want the treatment. This has led to the popularity of
living wills.
1. What If There Is No Living Will? For married persons, the spouse is the relative
with authority in this matter.
2. Physician-Assisted Suicide. The Supreme Court has said that the Constitution
does not include a right to commit suicide. This decision left states much leeway
to legislate on this issue. Since that decision in 1997, only the state of Oregon has
legalized physician-assisted suicide.
ii.
Privacy Rights versus Security Issues. Privacy rights have come under greater scrutiny
since September 11, 2001.
1. The USA Patriot Act. The Patriot Act was designed to enhance the governments
ability to combat terrorism, easing restrictions on the investigation, surveillance
and detention of terrorist suspects.
2. Civil Liberties Concerns. While some see the Patriot Act as an essential tool in
the fight against terrorism, others see it as an encroachment upon the First,
Fourth, Fifth and Eighth Amendments.
I.
The Great Balancing Act: The Rights of the Accused versus the Rights of Society
a. Rights of the Accused. In the United States, when the government accuses an individual
of committing a crime, the individual is presumed to be innocent until proven guilty.
The Bill of Rights sets forth specific rights of the accused:
1. Fourth Amendment
1.
No unreasonable or unwarranted search or seizure.
2.
No arrest except on probable cause.
2. Fifth Amendment
1.
No coerced confessions.
2.
No compulsory self-incrimination.
3.
No double jeopardy.
3. Sixth Amendment
1.
Legal counsel.
2.
Informed of charges.
3.
Speedy and public jury trial.
4.
Impartial jury of ones peers.
4. Eight Amendment
1.
Reasonable bail.
2.
No cruel or unusual punishment.
When the Bill of Rights was enacted, these restrictions were only applicable to the national
government. The Fourteenth Amendment eventually made these rights applicable to state
governments. Most of these interpretations have occurred in the last half of the 20 century and
interpretation is an ongoing process. The rights of the accused today are vastly different than
the rights of the accused before 1950.
b.
Extending the Rights of the Accused. Today the conduct of police and prosecutors is
limited by various cases, and the accused has the right to an attorney if he or she cannot afford
one (Gideon v. Wainwright 1963).
1. Miranda v. Arizona. The Miranda ruling requires the police to inform suspects of
their right to remain silent and to have the presence of an attorney during
custodial interrogation.
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II.

II.

2. Exceptions to the Miranda Rule. These include a public safety exception, and a
rule that illegal confessions dont necessarily bar a conviction if compelling
evidence exists independent of the confession.
3. Video Recording of Interrogations. In the future, such a procedure might satisfy
Fifth Amendment requirements.
ii.
The Exclusionary Rule. This prohibits the admission of illegally seized evidence (Mapp
v. Ohio 1961).
The Death Penalty.
1. Cruel and Unusual Punishment? The Eight Amendment prohibits cruel and unusual
punishment. Does the death penalty violate the cruel and unusual punishment clause? In
the 1970s most state death penalty statutes were found to be unconstitutional because of
inconsistent and arbitrary use. As states began to revise capital punishment statutes and
clarify the circumstances in which the death penalty was required, the Court held that the
new laws were not a violation of the Eighth Amendment.
2. The Death Penalty Today. Currently 37 states allow the death penalty.
3. Time Limits for Death Row Appeals. The 1996 Anti-Terrorism and Effective Death
Penalty Act limits appeals from death row. Recently, DNA testing has led to the freeing
of about a hundred death row inmates who were wrongly convicted, casting a shadow of
doubt on the death penalty.
Features
a. What If . . . The Government Monitored All E-mail? The concern about terrorism has
prompted calls for a dramatic expansion of the governments power to monitor the
communications of its citizens. While some see this as an essential measure in the quest
to make the nation safe, others see it as a dangerous expansion of governmental power in
violation of constitutional protections.
b. Which Side Are You On? Evolution versus Intelligent Design. While some see Intelligent
Design as a legitimate alternative that explains gaps in the theory of evolution, others
dismiss it as an attempt to repackage the theory of creationism and insert religion into
science curriculums in public schools.
c. Politics and Diversity: Military Recruiters Access on Campus. When law schools
sought to ban military recruiters in response to the dont ask, dont tell policy, Congress
enacted the Solomon Amendment, requiring all universities receiving federal funds to
open their campuses to military recruiters. In Rumsfeld v. Fair, the Supreme Court
upheld the Solomon Amendment, ruling that Congress could go so far as to force schools
to allow this sort of recruitment.
d. Beyond Our Borders: An Uproar over Cartoons. When a Danish newspaper printed an
unflattering portrait of Muhammad it set off widespread rioting and violence. The
reaction revealed a cultural rift between Muslims, who regarded this as the worst sort of
heresy, and Westerners, who had grown used to parody and irreverence.

BURNS:
Civil Liberties: Ch. 17 Rights to Life, Liberty, and Property
Due Process- established rules and regulations that restrain those in government who exercise
power. Unavailable to citizens of Iraq, China, and much of Africa and South America and other
parts of the world. Public officials in the U.S. do have great power under certain conditions
they can seize property, put us in jail, and even take lives (in extreme circumstances.)
Citizenship Rights
The basic right of citizenship was not given constitutional protection until 1868 when the
Fourteenth Amendment was adopted; prior to that each state determined citizenship.
The Fourteenth Amendment states All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. All persons born in the U.S. except children born to foreign ambassadors and ministers,
are citizens of this country regardless of the citizenship of their parents. The Fourteenth
Amendment does not make Native Americans citizens, Congress did so in 1924.
Naturalization citizenship can also be acquired by naturalization, a legal action conferring
citizenship upon an alien. See naturalizations requirements chart p. 384
Immigration and Naturalization Service (INS) (with the help of Federal Bureau of Investigation)
or any state and federal court can grant citizenship. Naturalization citizenship may be revoked
by court order if the government can prove citizenship was secured by deception. But
citizenship cannot be taken from people because of what they have donefor example, for
committing certain crimes, voting in foreign elections, or serving in foreign armies. Citizenship
may be renounced voluntarily.
Dual citizenship Citizenship in two or more nations. Children, for example, abroad to American
citizens may also be citizens of the nation in which they were born. Among the nations that
allow dual citizenship are Canada, Mexico, France, and the United Kingdom. Dual citizenship
carries negative as well as positive consequences; for example, a person with dual citizenship
may be subject to national service obligations and taxes in both countries.

Right of expatriation Right of individuals to renounce their citizenship.

Rights of American Citizens
Residence the place one calls home. A person may be living in D.C. but be a citizen of CA
that is, consider CA home and vote in that state.
Most of our important rights flow from state citizenship. In the Slaughter House Cases 1873
the Supreme Court carefully distinguished between the privileges of United States citizens and
those of state citizens. It held that the only privileges of national citizenship are those that owe
their existence to the Federal Government, its National Character, its Constitution or its laws.
These privileges have never been completely specified, but they include the right to use the
navigable waters of the US and to protection on the high seas, to assemble peacefully and
petition for redress of grievances, to vote if qualified to do so under state laws and have ones
vote counted properly, as well as to travel throughout the US.
1. The right to live and travel in the US. Aliens may be stopped at borders or on the high seas
and turned away if they fail to meet the terms and conditions stipulated by the Congress for
admission. Millions of people around the world yearn to come and live in the US, but only
American citizens have a constitutionally guaranteed right to do so.
2. The Right to Travel Abroad International travel can be regulated within the bounds of due
process. Citizens must have a valid passport in most cases to do so, however.
Rights of Aliens
Neither Congress nor the states can deny to aliens the right of freedom of religion or the right of
freedom of speech. Nor can any government deprive any person, alien or citizen, of the due
process of the law or equal protection under these laws.
However, Congress may deny or limit welfare and many other kinds of benefits to aliens.
Congress has denied most federally assisted benefits to illegal immigrants and has permitted
states to deny them many other benefits, making an exception only for emergency medical care,
disaster relief, and some nutrition programs. States have considerable discretion over what
benefits they give to aliens, the Supreme Court has held that states cannot constitutional exclude
children of undocumented aliens from the public schools or charge their parents tuition.
Admission to the United States
Throughout our history debates have flared among those wishing to open our borders and those
wishing to close them. Congress has wide discretion in setting the numbers, terms, and
conditions, under which aliens can enter and stay in the U.S. The Immigration Act of 1965, as
amended in 1990 and 1996, sets an annual ceiling of 675,000 for nonrefugee aliens allowed to
come here as permanent residents, but when refugees and other exempt categories are added,
more than 800,000 people enter the US each year. The law also sets an annual limit on
immigrants from any single country. Preference is given for family reunification and to people
who have special skills or who are needed to fill jobs for which US workers are not available.
Another provision allows for admission of Millionaire Immigrants who are willing and able
to invest a substantial sum to create or support a business in the US that will provide jobs for US

citizens. There is also a diversity category to provide visas for 55,000 immigrants from 34
countries, whether or not they have relatives living in the US. These visas are drawn annually
by lottery from a pool of qualified applicants. There are also more than 100,000 political
refugees have been admitted in recent years. Political refugees are people who have wellfounded fears of persecution in their own countries based on their race, religion, nationality,
social class, or political opinion. They may become permanent residents after one year. The
attorney general may also grant asylum to applicants who have well-founded fears of persecution
in the country to which they would be returned, based on their race, religion, nationality,
membership in a particular social group, or political opinion. The president may order the Coast
Guard as both Bush and Clinton did with respect to Haitian and Cuban refugeesto stop
people on the high seas before they enter the territorial waters of the US and return them to their
country without determining whether they qualify as refugees. Many are willing to risk great
danger and suffer detention just for the chance of being granted asylum.
Once in the US, aliens are subjected to the full range of obligations, including the payment of
taxes. They are counted in census for the purpose of apportioning seats in the US House of Rep.
Legally admitted aliens may be deported for a variety of reasons for example, conviction of
crimes involving immoral acts, turpitude, incitement of terrorist activity, illegal voting in
elections, and conviction of domestic violence.
Property Rights
Property does not have rights. People do. People have the right to own, use, rent, invest in, buy
and sell property. The framers, however, included in the Constitution a variety of clauses
protecting rights. They were determined to limit government so it could not endanger the right
of people to use and enjoy their property.
Contact clause Clause of the Constitution that was originally intended to forbid state
governments to modify contracts made between individuals; for a while interpreted to forbid
state governments from adversely affecting property rights; no longer interpreted so broadly and
no longer constrains state governments from exercising their police powers.
Police powers inherent powers of state governments to pass laws to protect the public health,
safety, and welfare; the national government has no directly granted police powers, but through
other delegated powers accomplishes the same goals.
Eminent domain power of a government to take private property for public use; the U.S.
Constitution gives national and state governments this power and requires them to provide just
compensation for property so taken.
Regulatory taking government regulation of property so extensive that government is deemed to
have taken the property by the power of eminent domain, for which it must compensate the
property owners.
Due process established rules and regulations that restrain those in government who exercise
power

Procedural due process constitutional requirement that governments proceed by proper methods;
places limits on how governmental power may be exercised.
Substantive due process constitutional requirement that government act reasonably and that the
substance of the laws themselves be fair and reasonable; places limits on what a government may
do.
Privacy Rights
The most important extension of substantive due process in recent decades has been its
expansion to protect the right of privacy, especially marital privacy. Griswold v. Connecticut
1965 the Supreme Court pulled together elements of the First, Third, Fourth, Ninth, and
Fourteenth Amendments.
Three Aspects:
1. the right to be free from governmental surveillance and intrusion, especially in marital matters
2. The right not to have private affairs made public by the government
3. The right to be free in thought and belief from governmental regulations
Abortion Rights
The most controversial aspect of constitutional protection of privacy relates to the extent of state
power to regulate abortions. In Roe v. Wade 1973 the Supreme Court ruled: 1. during the first
trimester of a womans pregnancy, it is an unreasonable and therefore unconstitutional
interference with her liberty and privacy rights for a state to set any limits on her choice to have
an abortion or on her doctors medical judgements about how to carry it our 2. during the second
trimester, the states interest in protecting the health of women becomes compelling, and a state
may make a reasonable regulation about how, where, and when abortions may be performed 3
during the third trimester when the life of the fetus outside the womb becomes viable, the states
interest in protecting the unborn child in so important that the state can prohibit abortions
altogether, except when necessary to preserve the life or health of the mother.
Bowers v. Hardwick 1986 the Supreme Court refused to extend such protection to relations
between homosexuals. The majority ruled that although sodomy occurs in the privacy of the
home, it was considered a crime. State Supreme Courts found greater privacy protection in their
state constitutions than the U.S. Supreme Court found in the U.S. Constitution. In 1999, the
Vermont state supreme court held that same sex couples must be given the same benefits and
protections as married couples.
In Boy Scouts of America v Dale 2000 the Supreme Court held that a New Jersey public
accommodations law could not be applied to keep the Boy Scouts from excluding gays from
being Scout leadersfor the court the Boy Scouts are a private association, and as such they
have a rights to exclude people whose beliefs and conduct are inconsistent with the Scouts views
and mission.
The U.S. Supreme Court in Romer v. Evans 1996 struck down an initiative amending the
Colorado constitution that prohibited all legislative, executive, and judicial action design to
protect homosexuals at any level of state or local government. This provision violated the equal

protection clause because it lacked a rational basis and simply represented a prejudice toward a
particular group of people.
Rights of Persons Accused of Crimes
Freedom from Unreasonable Searches and Seizures (Fourth Amendment)
A search warrant issued by the magistrate after the police indicate under oath that they have
probable cause outlining specific conditionswhat place is to be searched and what things are to
be seized.
Deadly force it is unconstitutional to shoot at an apparently unarmed, fleeing, suspected felon
unless the officer has probable cause to believe that the suspect poses a significant threat of death
or serious injury to the officer or others.
When police fired 41 bullets into an unarmed black man, protests erupted in the Bronx, NY
neighborhood.
Terry v. Ohio 1968 a stop and frisk exception to searches of individuals, when officers have
reason to believe they are armed and dangerous, or have committed or are about to commit a
criminal offense. The so-called Terry search is limited to a quick pat-down to check for weapons
that might be used to assault the arresting officer, to check for contraband, to determine identity,
or to maintain briefly the status quo while obtaining more information.
The Plain View Exception permits officers to seize evidence without a warrant if : 1. they are
lawfully in a position from which the evidence can be viewed; 2 it is immediately apparent to
them that the itiems they observe are evidence of a crime or are contraband; 3 they have
probable cause to believe a reasonable suspicion will not dothat the evidence uncovered is
contraband or evidence of a crime.
Exigent Circumstances Searches are permissible when officers do not have time to secure a
warrant before evidence is destroyed or a crimina escapes capture, or when there is need to
protect or preserve life or avoid serious injury. An example is that fire fighters and police may
enter a burning building without a warranct and may remain thee for a reasonable time to
invesitgati the couse of the blaze after the fire has been extinguished. However, after the fire has
been put out, the emergency is not to be used as an excuse to make an exhaustive, warrantless
search for evidence.
The Automobile Exception If officers have probable cause to believe that an automobile is being
used to commit a crime, even a traffic offense or that it contains persons who have committed
crimes, or that it contains evidence of crimes, they may stop the automobile, detain the persons
and search them and containers or packages. The driver and passengers may be asked to get out
of the car without violating the Fourth Amendment.
Foreign Agents Congress has endorsed the presidential claim that a president can authorize
warrantless wiretaps and physical searches of agents of foreign countries.

Troublesome area in recent times, has been compulsory, random drug testing.
But the use of metal detectors and locker searches at schools does not require search warrants
and other protections applied to police searches.
The Exclusionary Rule In Mapp v Ohio 1961 the Supreme Court adopted a rule excluding from
a criminal trial evidence that the police obtained unconstitutionally or illegally. This
exclusionary rule was adopted to prevent police misconduct. Critics of the exclusionary rule
question why criminals should go free just because of police misconduct or ineptness, but the
Supreme Court has refused to abandon the rule. It has made some exceptions to it, however,
such as cases in which police relied in good faith on a search warrant that subsequently turned
out to be defective or granted improperly.
The Right to Remain Silent
The privilege against self-discrimination stems from the courts in 17 century England forcing
confessions from religious dissenters. Supposedly this privilege should only be extended to
persons with a reasonable fear that their answers might support a criminal prosecution against
them. Rather than answers or responses that might be embarrassing or might lead to loss of a job
or even to civil suits; persons must have a reasonable fear that their answers might support a
criminal prosecution against them.
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Immunity Protection granted by prosecutors to witnesses in exchange for giving up their

constitutional right not to testify against themselves.
The Miranda Warning Roughly 90% of all criminal convictions result from guilty pleas and
never reach a full trial. Police questioning can be easily abused, however, as officers sometimes
forget or ignore the constitutional rights of suspects, especially those who are frightened and
ignorant. In 1966, Miranda v. Arizona announced that no conviction could stand if evidence
introduced at the trial had been obtained by the police during custodial interrogation unless
suspects were notified that they have a right to remain silent and to have an attorney present (and
that a lawyer will be appointed to represent them if they cannot afford to hire their own attorney.
Failure to comply with these requirements leads to reversal of a conviction, even if other
evidence is sufficient to establish guilt.
Fair Trial Procedures
--The right to counsel (at every stage of the criminal proceedingspreliminary hearings, bail
hearings, trial, sentencing, and first appeal.
--Indictment A formal charge issued by a grand jury against an individual for a specified crime;
also called true bill. No one except members of the armed forces, can the national government
force to stand trial for a serious crime. In other words, anyone that has to stand trial on serious
charges must go before the grand jury;
grand jury a jury of 12 to 23 persons who, in private, hear evidence presented by the government
to determine whether persons shall be required to stand trial; if the jury believes there is
sufficient evidence that a crime was committed, it issues an indictment.

Plea bargain Negotiations between prosecutor and defendant aimed at getting the defendant to
plead guilty in return for the prosecutors agreeing to reduce the seriousness of the crime for
which the defendant will be charged.
The Trial
Anyone suspect is guaranteed a speedy and public trial. Remember defendants often request
additional time to prepare their defense and delay often works to their advantage.
Petit jury-- A jury of 6 or 12 persons that determines guilt or innocence in a civil or criminal
action. Guaranteed under the Sixth Amendment
The crime rate has been going down in the past few years but public concern remains high.
Presidents, governors, and legislators flex their muscles on crime and in a number of states there
is a THREE strikes youre out law, requiring lifetime sentences with the possibility of parole for
individuals convicted of three felonies.
Double Jeopardy - the Fifth Amendment provides that no person shall be subject for the same
offense to be twice put in jeopardy for life or limb. One can be prosecuted but both the national
and state government as well as two states.
Capital Punishment The death penaltycontroversial Japan and the US are the only
industrialized nation to retain the death penalty. After a 10 year moratorium, the US Supreme
Court ruled in 1976 that the death penalty should not be considered cruel and unusual
punishment. In the 1990s the Rehnquist Court made it easier to impose death sentences, cut back
on appeals, and carry out executions. Currently 38 states have the death penalty. Since then
over 600 have been executed in the US and over 3600 are on death row.
Criticisms of our system
--Too many loopholes criminals may go unpunished because 1 police decide not to arrest them,
2 the prosecutor decides not to hold them for trial 3 grand jury decides not to indict them 4 the
judge decides not to hold them for trial 5 the jury decides not to convict them 6 the appeals
court decides to reverse the conviction, 7 the judge decides to release them on a habeas corpus
writ 8 the president or governor decides to pardon, reprieve, or parole them if convicted
As a result, police blame prosecutors. Prosecutors blame police, they all blame juries.
Too unreliable Trial by juries are considered problematic to many, costly and timeconsuming.
Theatrical combat between lawyers who based their appeals on the prejudices and sentiments of
jurors. Also there is jury nullification jurors ignore their instructions to consider only the
evidence presented in court and by voting for acquittal express their displeasure with the law or
the actions of prosecutors or police
Too discriminatory
Equal justice under the law is the goal but poor people accused of crimes who cant afford
lawyers must be furnished them at governments expense.

Unfair to Minorities African Americans and Hispanics in underprivileged communities Critics

say police are enforcers of white lawstudies show that white officers are rough, brutal when
dealing with minorities. Unfounded arrest 4x as high as whites per a study in CA, Latino 2x.
Police use racial profiling ( Police target racial minorities as potential suspects of criminal
activities.
In recent decades, there have been efforts to recruit more AF Am and Hispanics as police
officers, and various boards dealing with law enforcement Community policing is also
implemented in some cities with churches and community groups patrol neighborhoods as a
method of crime prevention

Amendments
List and briefly explain each Amendment and answer the
subsequent questions.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

24.
25.
26.
27.

28. How many Bill of Rights Amendments were proposed initially?

29. What is the primary difference between Civil Liberties and
Civil Rights?
30. Create a Chart that displays your mastery of Amending the
Constitution.
Acts, Bills, and Laws, From 1791 to 1992

Amendment Ratified Description

1st

1791

Rights to Religion, Speech, Press, Assembly, Petition

2nd

1791

Right to Bear Arms

3rd

1791

Quartering of Soldiers

4th

1791

Search and Seizure

5th

1791

Grand Jury, Double Jeopardy, Self-Incrimination, Due Process

6th

1791

Rights of Accused in Criminal Prosecutions: Rights to Jury Trial, to

Confront Opposing Witnesses and to Counsel

7th

1791

Jury Trial

8th

1791

Protections against Excessive Bail, Cruel and Unusual Punishment

9th

1791

Non-Enumerated Rights

10th

1791

Rights Reserved to States

11th

1795

Suits Against a State

12th

1804

Election of President and Vice-President

13th

1865

Abolition of Slavery and Involuntary Servitude

14th

1868

Protects rights against state infringements, defines citizenship, prohibits

states from interfering with privileges and immunities, requires due
process and equal protection, punishes states for denying vote, and
disqualifies Confederate officials and debts

15th

1870

Voting Rights

16th

1913

Federal Income Tax

17th

1913

Popular Election of Senators

18th

1919

Prohibition

19th

1920

Women's Right to Vote

20th

1933

Limits Presidential Terms

21st

1933

Repeal of 18th Amendment (Prohibition)

22nd

1951

Two-Term Limitation on President

23rd

1961

District of Columbia Presidential Vote

24th

1964

Abolition of Poll Tax Requirement in Federal Elections

25th

1967

Presidential Vacancy, Disability and Inability

26th

1971

Right to Vote at Age 18

27th

1992

Congressional Compensation

CIVIL LIBERTIES
INTRODUCTORY NOTES
A commitment to personal freedom is deeply rooted in Americas
colonial past. English people had waged a continuing struggle for
individual rights, and the early colonists brought a dedication to
that cause with them to America.
Their commitment to freedom took root here, and it flourished. The
Revolutionary War was fought to preserve and expand these very
rights: The rights of the individual against the government.
The Constitution, an important document indeed, did not include a
general listing of the rights of people. That omission raised an
outcry. The objections were so strong that some states ratified
(approved) of the Constitution only with the understanding that a
general listing of the rights of people would be added immediately.
Congress met that demand in its first session with a series of

proposed amendments. Ten of them, in fact, the Bill of Rights was

ratified December 1791.
(13 and 14 Amendments were later added to the Constitutions
guarantees of personal freedom.) The 13 Amendment abolished
slavery. The Due Process Clause of the 14 Amendment prevents the
States from abridging (denying) rights guaranteed in the
Constitutions Bill of Rights. Due Process Clause: No State shall
deprive any person of life, liberty, or property, without due process
of law.
th

th

th

th

Civil Rights & Civil Liberties

The distinction between Civil Rights and Civil Liberties is at
best cloudy, and scholars often disagree on the matter. You
should think of the distinction in the following way: Civil
liberties are protections against government. They are
guarantees of the safety of persons, opinions, and property
from arbitrary and random acts of the government. (e.g.
freedom of religion, freedom of speech and press, and the
guarantee of a fair trial).
Civil Rights, positive acts of government that seek to make
constitutional guarantees a reality for all people. From this
perspective, examples of civil rights include prohibitions of
discrimination on the basis of race, sex, religious belief, or
national origin. These prohibitions are outlined in the Civil
Rights Act of 1964.

Process of Incorporation
The Court has incorporated or included, most of the
guarantees in the Bill of Rights into the 14 Amendments
Due Process Clause. The Court began that historic process
in Gitlow v. New York in 1925. The landmark case involved
Benjamin Gitlow, a communist, who had been convicted in
the State courts of criminal anarchy. He had made several
speeches and published a pamphlet calling for the violent
overthrow of government in this country.
th

The Supreme Court upheld (supported) Gitlows conviction

and the State law under which he had been tried, viewing
Gitlows conduct as a call to action. But the 1 Amendment,
freedom of speech provision was incorporated by the 14
Amendment thus applying to State as well as federal laws.
st

th

CIVIL LIBERTIES QUALIFIER

Give the term or phrase that shows your understanding of the following statements.

1. _______________ Gitlow v. New York speech or other first

Amendment freedoms may be curtailed if there is a possibility that
that expression might lead to some evil.
2. ___________________ Constitutional mandates demanded by
the people before accepting a strong central government
3. _______________ The view that most of the protections of the
Bill of Rights apply to state governments through the Fourteenth
Amendments due process clause.
4. ____________________ This prohibits a nationally supported
church.
5. ____________________ Constrains the national government
from prohibiting individuals from practicing the religion of their
choice.
6. ____________________ Direct state aid could not be used to
subsidize religious instruction. Aid must be secular (nonreligious) in
aim.
7. ____________________ public funds for private and churchrelated schools that increases educational options.
8. Engel v. Vitale
9. ____________________ Supreme Court outlawed officially
sponsored daily readings of the Bible and recitation of the Lords
Prayer in public school.

10. ____________________The existence of a creative force can

explain voids in the evidence supporting Darwins evolutionary
theory.
11. ____________________ The New York Times v. United States
1971 involved prior restraint (censorship).
12. ____________________Durable health-care powers of attorney:
Terri Schiavos spouse, not the parents, is the legal guardian.
Vegetative state for over decade, husband wanted the feeding tube
removed and her parents resisted and filed suit with the courts.
13. _________________ Federal Communications Commission
established in 1934, to regulate electromagnetic wave frequencies.
No one has the right to use the airwaves without a license from the
FCC. Licences are issued periodically and impose a variety of
regulations on broadcasting.
14. Rights of the Accused (List 10)
15. __________________ You have the body. An order that
requires jailers to bring a prisoner before a court or judge to bring
prisoner before a court or judge and explain why the person is being
held
16. __________________ In 1973, US Supreme Court accepted the
argument that the laws against Jane Roes right to privacy under
the Constitution. The Court ruled that in the first trimester of a
pregnancy abortion was an issue solely between a woman and her
physican. There are conditions for 2 and 3 trimesters too.
nd

rd

17. __________________ Justice Potter Stewart I know it when I

see it. Chief Justice Warren Burger listed material of a sexual
nature that offends the average person that lacks literary, artistic,
political, or scientific merit in the Miller v. California case.

18. __________________ An order issued by a judge restricting the

publication of news about a trial or a pretrial hearing to protect the
accuseds right to a fair trial
19. __________________ A policy forbidding the admission at trial
of illegally seized evidence (Mapp v. Ohio)
20. __________________ The public uttering of a false statement
that harms the good reputation of another. The statement must be
made to, or within the hearing of, persons other than the defamed
party.
21. __________________ Deterrent or a barbaric act?
TODAY, 38 states and the federal government have capital
punishment laws based on the Gregg v. Georgia case. Associated
with the Eighth Amendment -- opposed to Cruel and Unusual
punishment.
22. __________________ Wrongfully hurting a persons good
reputation. The law imposes a general duty on all persons to refrain
from making false, defamatory statements about others.
23. __________________ A false statement that harms the good
reputation of another. A written defamation of a persons character,
reputation, business, or property rights.
24. __________________Controversial issue of recent times:
sometimes unconstitutional other times constitutional.
25. __________________ The issue: evolution or creationism.
26. __________________ The provision of the First Amendment
guaranteeing the free exercise of religion.
27. __________________ Justice Oliver Wendell Holmes position
on determining when government may restrict free speech.

Restrictions are permissible, he argued, only when speech creates a

clear and present danger to the public order.
28. __________________ Either knowledge of a defamatory
statements falsity or a reckless disregard for the truth.