I. Now & Then: Civil Liberties During Wartime
A. In the past, foreign elements threatened our security, and the government responded in part by restricting civil liberties. This included due process rights for aliens, and sometimes the right to criticize the government more generally. Granting civil liberties has often taken a backseat to protecting national security interests during these times.
B. The same occurred in the war on terror, launched after the September 11 terrorist attacks and inherited by President Barack Obama when he took over the White House from President George W. Bush in January 2009.The USA Patriot Act, initially enacted by Congress during the Bush presidency, gave the government new powers to detain suspects, search their homes, and eavesdrop on telephone or e-mail conversations. Authorities were allowed to hold alien terror suspects for seven days without charging them, and military tribunals with limited due process protections were set up to try non-citizens. Those critical of these policies were labeled disloyal. In the face of protest, the government has since broadened the protections offered under such tribunals and has become less critical of opponents. When Obama campaigned for the presidency in 2008, he promised to scale back many of these Bush-era measures. Yet as president, Obama quickly discovered the dangers of rolling back those measures in the absence of clear guarantees that national security would not be compromised. Nearly a decade after 9-11, the state of civil liberties in the United States is still fundamentally different than it had been before the terrorist attacks, even with President Obama in office.
C. Problems in balancing civil liberties and national security are not new. In both the Civil War and WWI, civil liberties were abridged, questionable laws were passed to suppress opposition, and sedition (the crime of advocating the overthrow of government) was an increasingly controversial issue. In 1798, the threat of war caused the government to pass the Alien and Sedition Acts. While first applied to foreigners, the laws were eventually used to suppress those involved in domestic dissent as well, until Jefferson nullified them as president. However, they were never ruled unconstitutional, and the possibility still exists that governments may sharply restrict civil liberties during wartime.
D. In other nations, this may be quickly accepted. However, such policies run counter to the principles of our Founders and the Bill of Rights. We therefore seek to protect them during times of national crisis.
This chapter focuses on civil liberties—the specific individual rights (like freedom of expression) that are guaranteed by the Constitution and cannot be taken away by the government. These rights are mainly found in the Bill of Rights or subsequent amendments. (The chapter focuses primarily on the provision of rights guaranteed by the First, Second, and Fourth Amendments, and certain provisions within the Fifth, Sixth, Eighth, and Fourteenth Amendments.) “Civil liberties” are distinct from “civil rights,” which refers to rights involving equal treatment under the law (and will be addressed in Chapter 5).
II. The Bill of Rights: Origins and Evolution
A. Rights are powers or privileges to which people are justly entitled. “Natural rights,” based on the natural laws of human society, exist outside of formal government, are inalienable, and cannot be legitimately removed. “Positive rights” are granted by government authority, and can therefore be shaped according to rules. “Liberty” is a right received from a higher authority.
B. Individual rights are the “fruits, not the roots, of the Constitutional tree,” as noted by Justice Antonin Scalia. The Constitution was meant to protect individuals through limited government and enumerated (restricted) powers. However, early American tradition (the Declaration, states’ bills of rights) raised calls for an explicit statement of individual rights during the ratification process. This included Mason, Henry, Jefferson, and eventually Madison, who framed the rights proposed by Congress in 1789. (The first ten amendments are usually considered the formal “Bill of Rights.”)
C. The Bill of Rights had limited influence initially, as it applied only to the federal government, not the states (Barron v. Baltimore, 1833). Since the states were dominant anyway at this time, the Bill of Rights had little effect.
However, in the twentieth century, the Supreme Court (“the Court”) began using the due process clause of the Fourteenth Amendment to apply the Bill of Rights to the states through the Doctrine of Incorporation. The term “incorporation” refers to the Court’s application of these rights to the states, and its provision that state, local, and federal government could not deny these rights to citizens. (The Fourteenth Amendment was meant to protect freed slaves from state discrimination, and the due process clause states that no state could “deprive any person of life, liberty or property without due process of law.” The Court began holding that certain “liberties” or rights were so fundamental that state deprivation of those rights was a violation of due process.)
This began in 1925 with free speech, and by 1969, nearly every provision of the Bill of Rights had been applied to the states (aside from the right to bear arms, grand jury requirements, and several other obscure rulings). Five provisions within the amendments provide protection against the federal government only. All others are now applicable to state and local governments.
III. Freedom of Religion and the Establishment Clause
Religion is the first right noted in the Bill of Rights, but protections were initially limited. Jefferson wanted a “wall of separation” between church and state, but government supported religion for many years, especially Protestant sects. Other groups were forced to change practices when they conflicted with policy. By the 1940s, public life was more secular, and this right was transformed. However, interest in accommodating religion still sometimes conflicts with the theoretical wall of separation.
A. The Free Exercise of Religion
The free exercise clause bans government laws prohibiting freedom of worship. Debate focuses on whether government can force people to do things prohibited by their religion, or prevent them from doing things required by their religion. In West Virginia v. Barnette (1943), the court upheld the right of Jehovah’s Witnesses not to salute the flag, but this also reflected free expression grounds.
Seventh Day Adventists and the refusal to work: In the Sherbert v. Verner case (1963), based wholly on religious protection, the Court ordered South Carolina to pay unemployment benefits to someone who refused to work on Saturdays (on religious grounds). The Court held that states could only deny such exemptions if they had a “compelling state interest.”
The Amish and mandatory school attendance: In Wisconsin v. Yoder (1972), the Court held that Amish families did not have to send their children to school past the eighth grade, even though Wisconsin law held otherwise.
The Mormons and polygamy laws: Initially, the Mormon church required polygamy for members. This ran counter to federal law, and the church sued on free exercise grounds. The Court, however, held that while beliefs could not be outlawed, practices that impaired public interest were not protected (Reynolds v. United States, 1878). This remains the law today, and polygamy is currently banned throughout the U.S.
Illegal drug use and the Smith case: In Employment Division v. Smith (1990), the Court held that states could deny unemployment benefits to Native Americans fired for using peyote as part of their religious practices. States may choose to accommodate otherwise illegal acts that constitute religious practices, but they are not required to do so.
Smith changed the standard in such cases from a compelling government interest to any legitimate state interest. In other words, the bar is much lower now for such conduct. Congress passed a law in 1993 to reverse the holding in Smith, but the Court invalidated that law in 1997. It therefore appears that religious exemptions will not usually be granted.
B. The Establishment Clause
The establishment clause prohibits the government from enacting any law “respecting an establishment of religion.” The question is exactly how much separation this really requires. One camp advocates “strict separation,” which is an absolute dividing line between church and state, while the other favors “accommodation,” which simply requires that government treat and/or support all religions equally. In recent decades, the Court has moved from a policy of strict separation to one that sometimes moves closer to accommodation.
Historically accepted practices: Certain religious practices have been part of public and political life for generations, and the Court has usually allowed them to continue (“In God we Trust,” chaplains in the army, opening prayers for Congress and the Court). However, the Court sometimes orders nativity scenes and other religious displays removed from public areas. The Court ordered Kentucky courthouses to remove displays of the Ten Commandments, but allowed a similar display outside the Texas state capitol building (grouped with other monuments) to remain. (The Supreme Court itself has a depiction of Moses and the Ten Commandments, along with seventeen other lawgivers, painted in its own courtroom).
Religious prayers in public school classrooms: Children are seen as vulnerable to religious messages, therefore religion in the classroom is a particularly sensitive area. Those seeking to promote religion have focused on schools, so courts have closely scrutinized this area. In Engel v. Vitale (1962), the Court struck down nondenominational school prayer. In Abington School District v. Schempp (1963), it outlawed spiritual bible readings in schools. And in Wallace v. Jaffree (1985), it outlawed “moments of silence” as provisions that were meant to encourage religious prayer. The Court held that in these instances, the government was not acting with a secular purpose, but was rather seeking to “advance religion.” However, these decisions are often difficult to enforce, and defiance likely exists in many classrooms, especially those in communities that strongly support school prayer and discourage any opposition to it.
Financial aid and the Lemon test: In recent decades, various government initiatives have tested the boundary between religion and public education, including the support of private religious schools with public funds. In Zelman v. Simmons-Harris (2002), the Court upheld a voucher system that allowed parents to transfer public funding to private schools on an individual basis. However, such programs continue to be controversial. Since 1971, church/state separation has been governed by the Lemon v. Kurtzman case (1971). What has come to be known as the “Lemon test” requires government aid to schools to meet the following criteria: 1) it must have a secular rather than a religious purpose; 2) its primary effect must neither advance nor inhibit religion; and 3) it must not foster an “excessive government entanglement with religion.” Some feel these requirements are too strict and prevent efforts at accommodation, but the Lemon test has never been overruled, and continues to be applied in courts today.
Prayers at graduation ceremonies and football games: In recent years, some school officials have tried to facilitate student prayer in contexts outside of the classroom, with little success. In Weisman (1992), the Court ordered a Rhode Island middle school to stop permitting prayers at its graduation ceremony, even though attendance was voluntary. In Santa Fe (2000), the court banned student-led prayers before Texas high school football games. The Court felt both practices essentially forced everyone present to participate in religious worship, and were therefore unconstitutional state endorsements of prayer.
The debate over the role of religion in public life remains controversial. Public schools are particular focal points, as religious proponents seek new ways to combine education with spirituality and religious participation.
IV. Free Expression Rights
First Amendment rights of free speech and press are especially revered. While threatened in the past, they are generally respected today as the cornerstone of all other individual rights, such as voting and participating in the democratic process.
Reasons for the respect granted these rights, and justifications for this free speech protection, include the following:
The marketplace of ideas: The best test of truth is the free exchange of ideas, free of government interference.
Self-governance: Free speech is the way in which citizens discuss policy and check officials.
Self-fulfillment: The capacity to freely create ideas and express oneself is considered central to human existence.
A safety valve: Free speech encourages flexibility to changing circumstances and prevents more extreme means of seeking change.
A. Free Speech During the Early Twentieth Century: “The Clear and Present Danger Test”
Earlier years saw less protection for speech, especially during times of war. In Schenck v. United States (1919), a socialist was tried for protesting WWI. The Court upheld the sentence, arguing that he posed “a clear and present danger” to the government. This standard was soon used for suppressing socialists and communists generally, including during the 1950s.
B. The Warren Court and the Rise of the “Preferred Freedoms” Doctrine
1. By the late 1950s, fears of communist subversion were subsiding, and Earl Warren’s placement as chief justice meant greater protection for free speech. The Warren Court embraced a doctrine first articulated in United States v. Carolene Products (1938), in which the Court noted that free expression enjoyed a “preferred position” in constitutional law.
2. In Brandenburg V. Ohio (1969), the Court abandoned the “clear and present danger” test and applied a stricter “imminent danger” test to KKK speakers. This test was based on the answer to two questions: 1) Was the speech meant to produce imminent lawless action? and 2) Was it likely to produce such action? This standard permitted far more latitude in public criticism.
3. This preferred freedoms doctrine also offered protection to those exercising the rights of free expression in other contexts (writers, filmmakers, protesters) and even to areas of obscenity and libel that had not traditionally enjoyed First Amendment protection.
C. Freedom of the Press, Libel Laws, and Prior Restraints
1. Press freedom has a long tradition in the United States. In 1734, the Zenger libel trial helped lay the foundation for this. (Libel is the crime of disseminating false and harmful statements.) Peter Zenger was a publisher charged with attacking a corrupt official, but was acquitted because his attacks were true, establishing the legal principle that truth was a defense to libel.
2. The New York Times v. Sullivan (1964) case further extended libel press protections regarding public figures. While ordinary people could sue newspapers for any inaccurate or harmful statement, Sullivan held that public officials would have to show malice or reckless disregard for the truth to successfully sue. This was later extended to all public figures (celebrities, actors, etc.).
3. Libel laws punish publications after the fact, but prior restraint limits statements before being published. This is very difficult to obtain. In the Pentagon Papers Case (1971), the Court even refused to stop papers from publishing a classified government study. Only in extreme cases, such as those involving information about troop movements during wartime, will the Court uphold prior restraint.
D. Obscenity and Pornography
1. Obscenity (words or publications that tend to violate accepted standards of decency) has long been an exception to free expression, even after the sexual revolution. The standard, however, is difficult to determine (per Justice Stewart, “I know it when I see it”).
2. The Miller v. California (1973) case established the modern test for obscenity: 1) the average person applying contemporary community standards would think the work (as a whole) applies to the prurient/lustful interest; 2) the work depicts sexual conduct in a patently offensive way; and 3) the work as a whole lacks serious literary, artistic, political, or scientific value (SLAPS test). The SLAPS test allows juries to apply their own idea of “community standards,” and few materials have survived this test.
3. None of the above rules apply to child pornography, which has no First Amendment protection.
4. The Internet has raised new issues. In Reno v. ACLU (1997), the Court struck down a law restricting indecency on the Internet. (While the law was designed to protect children, the Court held that it excessively restricted adult access to such material.) Regulation of pornography on the Internet remains an issue.
E. Symbolic Speech and the Flag-Burning Controversy
1. The 1969 armband protest case established that symbolic conduct could also constitute protected speech. However, other actions such as burning draft cards (United States v. Brien, 1969) or sleeping overnight in public parks were not protected. In O’Brien, the Court held that regulation of such symbolic speech could be justified where 1) the government interest was valid and important; 2) the interest was unrelated to the suppression of free speech; and 3) the restriction was no greater than necessary for the furtherance of that interest.
2. Because military registration and park service rules involved other important rationale aside from suppressing views, these regulations were upheld. The armband regulation, however, was struck down.
3. Flag burning has been an even more intense issue in recent years, as the flag is especially cherished by most Americans. For the same reason, however, protesters have targeted it to gain publicity. The Supreme Court ruled in Texas v. Johnson (1989) that states could not outlaw flag burning, and later struck down a similar federal law in 1990. Congress attempted to pass a constitutional amendment banning flag burning, but this has yet to gain Senate approval.
F. Hate Speech Codes
Speech preaching hatred for specific groups is particularly offensive to many, but is also often protected. In the 1970s, the courts allowed Nazis the right to march in a parade in Skokie, Illinois, home to many Holocaust survivors. However, the Court in Virginia v. Black (2003) allowed states to ban cross burning coupled with the intent to intimidate.
Universities have tried to restrict hate speech, but such speech codes at Michigan and Stanford were struck down by lower courts.
V. The Second Amendment Right to Bear Arms
The Second Amendment is ambiguous, because it states the people’s right to “bear arms,” but does so in the context of a “well-regulated militia.” Groups such as the National Rifle Association (NRA) have focused on the first aspect in opposing government restrictions on gun ownership.
The Court has historically offered little guidance, although it has permitted basic restrictions such as the registration of sawed-off shotguns.
The Court finally weighed in on the subject in 2008. In District of Columbia v. Heller (2008),i it held that the Second Amendment forbids the government from banning all forms of handgun possession in the home for purposes of immediate self-defense. However, the Court noted that government can still regulate the commercial sale of handguns, and it can prohibit their possession by felons and the mentally ill, or in sensitive places such as school buildings.
Congress has been reluctant to regulate gun ownership, partly due to lobbying by the NRA. However, some laws were passed after the attempted assassination of President Reagan in 1981—including the Brady Handgun Violence Prevention Act (1993), or “Brady Law”—requiring waiting periods and background checks to prevent certain criminals from purchasing guns. Small aspects of the Brady Law were struck down by the Court, but most of its content was upheld.
VI. The Rights of the Criminally Accused
A few rights for the accused may be found in the language of the original Constitution. The original Constitution prohibits bills of attainder (targeted at specific persons or groups) and ex post facto laws (new laws retroactively applied). Most criminal constitutional rights are contained in the Fourth, Fifth, Sixth, and Eighth Amendments.
For most of our history, these rights were limited, as they only applied to the federal government. However, they were incorporated and applied to the states by the 1960s, and were also expanded in substance. While they were scaled back somewhat under the Rehnquist Court of the 1980s and 1990s, defendants still enjoy numerous rights developed during the Warren Court.
A. Fourth Amendment Rights
1. The Fourth Amendment protects against unreasonable searches and seizures, a right with a long history in America (due to intrusive British searches). However, the Warren Court modernized this rule in Katz v. United States (1967), requiring warrants (issued by judges/magistrates) based on probable cause before searches can be conducted.
2. In Mapp v. Ohio (1961), the Court instituted the exclusionary rule, which holds that all evidence found in violation of the Bill of Rights must be excluded as evidence. This is controversial because it may allow clearly guilty suspects to go free, but some feel it is the only way to force government to act properly.
3. A “good faith exception” to the rule was instituted in 1984, stating that if a warrant is invalid through no fault of the police, evidence may still be admitted. Warrentless searches may also be permitted in cases in which 1) the search is made incidental to a lawful arrest; 2) the defendant has given consent; 3) “hot pursuit” of the defendant occurs; and 4) the evidence is in “plain view.” Individuals may also be stopped while driving, or patted down for weapons without warrants.
4. In terms of technological advances, no warrant is usually required for drug/alcohol testing as long as specified procedures are followed, and the defendant is in legitimate custody. However, warrantless thermal imaging scans, conducted from outside the home, have been struck down in the courts.
5. Stoplight face-recognition and other public security cameras are now in use. To date, none of these modern police tactics have been successfully challenged on Fourth Amendment grounds. But as the use of these techniques is broadened, it is certain that legal challenges will be waged.
B. Fifth Amendment Rights
1. The Fifth Amendment contains protections regarding grand juries, double jeopardy, and self-incrimination.
2. Grand jury protection, while theoretically a shield against improper prosecution, is only available at the federal level (no incorporation), and offers limited protection.
3. Double jeopardy protection is more meaningful, as it prevents people from being tried twice for the same offense. However, this doesn’t apply to different governments, so the federal government can still try someone after a state government fails (and vice versa).
4. The self-incrimination clause prevents defendants from being forced to testify against themselves. In Miranda v. Arizona (1966), the Court ruled that defendants must be apprised of their rights to remain silent and/or consult an attorney before being questioned. Confessions or information obtained without these “Miranda warnings” are generally subject to exclusion.
C. Sixth Amendment Rights
The Sixth Amendment’s protection of right to counsel was expanded in Gideon v. Wainwright (1963) to mean that poor defendants had the right to an attorney provided by the state. This applies to all cases involving a risk of jail time.
D. Eighth Amendment Rights
1. The Eighth Amendment forbids excessive bail/fines, along with cruel and unusual punishment. This means bail should be appropriate, but it is also proper to ban bail entirely in many cases.
2. More important is the ban on cruel and unusual punishment. The interpretation of this term continues to be debated today, although it is clear that it bans torture and other extreme punishments. The Court has also introduced “proportionality” requirements for punishments (serious punishments may not be imposed for relatively minor offenses).
3. The death penalty has never been held as inherently “cruel and unusual.” However, mitigating circumstances must be considered, it may not be applied to mentally retarded defendants (Atkins v. Virginia, 2002), and it cannot be applied to acts committed before the age of eighteen.
4. The death penalty retains broad popular support, but mistakes in convictions are inevitable. As a result, some governors have halted executions until processes are improved.
VII. The Modern Right to Privacy
A. The right to privacy is an unwritten right. Such unenumerated rights are acknowledged in the Ninth Amendment, but tend to be controversial.
B. The right to privacy was first recognized in Griswold v. Connecticut (1965), when the Court struck down a state anti-contraceptive law. The Court ruled that aspects of the Bill of Rights along with the Fourteenth Amendment created a “zone of privacy” which included reproductive rights.
C. While this decision was generally accepted, abortion rights were (and are) far more controversial. The Court applied the Griswold ruling to abortion in Roe v. Wade (1973), holding that states could not restrict abortion in the first trimester, and only partially in the second trimester.
D. There was strong reaction to this among abortion opponents, including President Reagan, who saw this as illegitimate judicial activism and appointed judges who were more conservative. These judges permitted more restrictions on abortion, applying an “undue burden” test to such restrictions in Planned Parenthood v. Casey (1992), even within the first and second trimesters. The Court therefore upheld twenty-four-hour waiting periods and parental permission requirements, but struck down spousal notification requirements. In Gonzales v. Carhart (2007)ii the Supreme Court upheld the Partial Birth Abortion Act of 2003, banning the use of the “intact dilation and extraction” abortion procedure, most often performed during the second trimester of pregnancies.
E. Privacy rights were extended to gays in Lawrence v. Texas (2003), striking down state anti-sodomy laws. They have also been implicated in physician-assisted suicide cases. So far, the Court has ruled that there is no constitutional right to physician-assisted suicide, as promoted by Dr. Jack Kevorkian, and states can outlaw or legalize it.
VIII. Now & Then: Making the Connection
America’s tradition of press protection doomed the 1789 Sedition Act. The Bush administration faced similar challenges to anti-terrorism measures, but defended them as necessary for national security. As a candidate, Barack Obama attacked the George W. Bush administration for cavalierly violating the rights of the accused in prosecuting the war on terror; yet once he became president, he left many of his predecessor’s more controversial measures in place and failed to effectively modify a handful of others. Although the actions of the Adams and Obama administrations could be loosely defined as “wartime measures,” not all Americans are equally willing to compromise the Bill of Rights in pursuit of a greater cause. John Adams suffered the public’s wrath at the polls in 1800; If President Obama fails to effectively protect the nation from further terrorist attacks, he too may suffer the same fate. Ultimately a balancing act is required between the interests of national security and the integrity of these constitutional rights, with some leaders more successful in this endeavor than others.
Ultimately, however, the Bill of Rights has generally become stronger and more relevant over the last half-century. The Warren Court was largely responsible for this, but the roots lie in the Fourteenth Amendment and the “preferred position” doctrine of Judge Stone. In recent years, the Court has returned more authority to the states and has scaled back some Warren decisions, but many decisions have been left untouched and some have even been expanded (flag burning).
IX. Chapter Summary
The Bill of Rights: Origins and Evolution
A. Civil liberties are rights guaranteed by the Constitution. Most are spelled out in the first ten amendments to the Constitution (the Bill of Rights). The addition of the Bill of Rights was promised to secure ratification of the Constitution.
B. Civil liberties are subject to interpretation by government and the courts. Initially, they just applied to the federal government, but have been largely extended to states through incorporation.
Freedom of Religion and the Establishment Clause
A. The free exercise clause bans laws that prohibit the free exercise of religion. Debate focuses on whether laws can force people to do things prohibited by their religion, or prevent them from doing things required by their religion.
B. The establishment clause prevents government from officially establishing a religion. The Court has recently moved from more strict separation to somewhere between separation and accommodation.
Free Expression Rights
A. Freedom of speech and the press is especially revered because this promotes the marketplace of ideas, allows a watchdog on government, and allows individuals to create ideas and improve society. The press gets wide latitude in libel cases, and prior restraint cases are rare. By legal definition, “speech” can include symbolic acts such as flag burning, and is especially protected.
The Second Amendment Right to Bear Arms
The Constitution protects the right of individuals to possess a firearm; still, the government retains the power to enact a broad range of firearms laws, including reasonable restrictions on possession by felons, or in sensitive places like schools or government buildings.
The Rights of the Criminally Accused
A. The Fourth Amendment protects against unreasonable searches and seizures, and generally requires warrants based on probable cause before such searches can take place. New technologies have given authorities new surveillance tools, which have been, and will continue to be, challenged.
B. Other criminal rights include double jeopardy, grand jury, and self-incrimination protections. Miranda rights (to remain silent, to an attorney) are protected by the Sixth Amendment. Violations of Miranda rights or warrant requirements may lead to evidence exclusion.
The Modern Right to Privacy
A. The Ninth Amendment states that some rights are protected even if not listed in the Bill of Rights. The right to privacy and the right to die are two such rights. The former was the basis for abortion rights (Roe v. Wade), although more restrictions have been placed on that right lately. The Supreme Court has also recognized the rights of gays and lesbians to sexual privacy. Courts have not yet created a right to active termination of one’s life.
i 554 U.S. _____ (2008).
ii 550 U.S. ___ (2007).