Chapter 4

Civil Liberties: Protecting Individual Rights

Learning Objectives

Having read the chapter, the students should be able to do each of the following:

  1. Explain why issues of constitutional individual rights or civil liberties have become more complex in contemporary times.
  2. Detail the development of selective incorporation as it relates to the Fourteenth Amendment and what it means for individual rights in the states.
  3. Trace the evolution of the Supreme Court’s interpretation of the right of free expression through both the early and modern periods. Important concepts such as prior restraint, libel, and slander should also be understood. Discuss the extension of its guarantees to state governments through the Fourteenth Amendment.
  4. Outline the historical development of the federal judiciary’s application of due process protections.
  5. Review key Supreme Court decisions relating to the right of privacy.
  6. Discuss the significance of the establishment and free exercise clauses in relation to freedom of religion.
  7. Explain how the rights of the accused have been protected through Supreme Court rulings. Detail the protections encountered at various stages of the criminal justice system, from the suspicion phase through appeal.
  8. Describe the changes that the war on terrorism has brought to the protection of individual rights.
  9. Summarize the role of the courts in a free society.

Chapter Outline

I.The Constitution: The Bill of Rights and the Fourteenth Amendment

A.Selective Incorporation of Free Expression Rights

B.Selective Incorporation of Fair Trial Rights

II.Freedom of Expression

A.The Early Period: The Uncertain Status of the Right of Free Expression

B.The Modern Period: Protecting Free Expression

1.Free Speech

2.Free Assembly

3.Press Freedom and Prior Restraint

4.Libel and Slander

5.Obscenity

III.Freedom of Religion

A.The Establishment Clause

B.The Free-Exercise Clause

IV.The Right to Bear Arms

V.The Right of Privacy

A.Abortion

B.Consensual Sexual Relations among Same-Sex Adults

VI.Rights of Persons Accused of Crimes

A.Suspicion Phase: Unreasonable Search and Seizure

B.Arrest Phase: Protection against Self-Incrimination

C.Trial Phase: The Right to a Fair Trial

1.Legal Counsel and Impartial Jury

2.The Exclusionary Rule

D.Sentencing Phase: Cruel and Unusual Punishment

E.Appeal: One Chance, Usually

F.Crime, Punishment, and Police Practices

VII.Rights and the War on Terrorism

A.Detention of Enemy Combatants

B.Surveillance of Suspected Terrorists

VIII.The Courts and a Free Society

Focus and Main Points

The author focuses on civil liberties issues in this chapter. He examines a range of specific individual rights and their evolution over time. These rights include freedom of speech, religion, and privacy. However, these rights are constantly being balanced against competing individual rights and society’s collective interests, making these increasingly complex and important in contemporary American politics. The main points of this chapter are as follows:

  • Freedom of expression is the most basic of democratic rights, but like all rights, it is not unlimited.
  • “Due process of law” refers to legal protections (primarily procedural safeguards) designed to ensure that individual rights are respected by government.
  • Over the course of the nation’s history, Americans’ civil liberties have been broadened in law and more fully protected by the courts. Of special significance has been the Supreme Court’s use of the Fourteenth Amendment to protect individual rights from action by state and local governments.
  • Individual rights are constantly being weighed against the demands of majorities and the collective needs of society. All political institutions are involved in this process, as is public opinion, but the judiciary plays a central role and is the institution that is typically most protective of civil liberties.

Chapter Summary

The Bill of Rights was added to the Constitution shortly after its ratification. These amendments guarantee certain political, procedural, and property rights against infringement by the national government.

The guarantees embodied in the Bill of Rights originally applied only to the national government. Under the principle of selective incorporation of these guarantees into the Fourteenth Amendment, the courts extended them to state governments, though the process was slow and uneven. In the 1920s and 1930s, First Amendment guarantees of freedom of expression were given protection from infringement by the states. The states continued to have wide discretion in criminal proceedings until the early 1960s, when most of the fair-trial rights in the Bill of Rights were given federal protection.

Freedom of expression is the most basic of democratic rights. People are not free unless they can freely express their views. Nevertheless, free expression may conflict with the nation’s security needs during times of war and insurrection. The courts at times have allowed government to limit expression substantially for purposes of national security. In recent decades, however, the courts have protected a wide range of free expression in the areas of speech, press, and religion. They have also established a right of privacy, which in some areas, such as abortion, remains a source of controversy and judicial action.

Due process of law refers to legal protections that have been established to preserve individual rights. The most significant form of these protections consists of procedures designed to ensure that an individual’s rights are upheld(for example, the right of an accused person to have an attorney present during police interrogation). A major controversy in this area is the breadth of the exclusionary rule, which bars the use in trials of illegally obtained evidence.

The war on terrorism that began after the attacks on September 11, 2001, has raised new issues of civil liberties, including the detention of enemy combatants, the use of harsh interrogation techniques, and warrantless surveillance. The Supreme Court has not ruled on all such issues but has generally held that the president’s war-making power does not include the authority to disregard provisions of statutory law, treaties (the Geneva Conventions), and the Constitution.

Civil liberties are not absolute but must be judged in the context of other considerations (such as national security or public safety) and against one another when different rights conflict. The judicial branch of government, particularly the Supreme Court, has taken on much of the responsibility for protecting and interpreting individual rights. The Court’s positions have changed with time and conditions, but the Court is usually more protective of civil liberties than are elected officials or popular majorities.

Major Concepts

civil liberties

The fundamental individual rights of a free society, such as freedom of speech and the right to a jury trial, which in the United States are protected by the Bill of Rights.

Bill of Rights

The first ten amendments to the Constitution, which set forth basic protections for individual rights of free expression, fair trial, and property.

due process clause (of the Fourteenth Amendment)

The clause of the Constitution that has been used by the judiciary to apply the Bill of Rights to the actions of state governments.

selective incorporation

The process by which certain of the rights (for example, freedom of speech) contained in the Bill of Rights become applicable through the Fourteenth Amendment to actions by the state governments.

freedom of expression

Americans’ freedom to communicate their views, the foundation of which is the First Amendment rights of freedom of conscience, speech, press, assembly, and petition.

clear-and-present-danger test

A test devised by the Supreme Court in 1919 in order to define the limits of free speech in the context of national security. According to the test, government cannot abridge political expression unless it presents a clear and present danger to the nation’s security.

imminent lawless action test

A legal test that says government cannot lawfully suppress advocacy that promotes lawless action unless such advocacy is aimed at producing, and is likely to produce, imminent lawless action.

symbolic speech

Action (for example, the waving or burning of a flag) for the purpose of expressing a political opinion.

prior restraint

Government prohibition of speech or publication before the fact, which is presumed by the courts to be unconstitutional unless the justification for it is overwhelming.

libel

Publication of material that falsely damages a person’s reputation.

slander

Spoken words that falsely damage a person’s reputation.

establishment clause

The First Amendment provision stating that government may not favor one religion over another or favor religion over no religion, and prohibiting Congress from passing laws respecting the establishment of religion.

Lemon test

A three-part test to determine whether a law relating to religion is valid under the religious establishment clause. To be valid, a law must have a secure purpose, serve neither to advance nor inhibit religion, and avoid excessive government entanglement with religion.

free-exercise clause

A First Amendment provision that prohibits the government from interfering with the practice of religion or prohibiting the free exercise of religion.

right of privacy

A right implied by the freedoms in the Bill of Rights that grants individuals a degree of personal privacy upon which government cannot lawfully intrude. The right gives individuals a level of free choice in areas such as reproduction and intimate relations.

procedural due process

The constitutional requirement that government must follow proper legal procedures before a person can be legitimately punished for an alleged offense.

exclusionary rule

The legal principle that government is prohibited from using in trials evidence that was obtained by unconstitutional means (for example, illegal search and seizure).

Lecture Outline

This lecture outline closely follows the text in its organization. The instructor can use this outline as a lecture aid.

The focus of this chapter is on civil liberties and it begins with an examination of the Bill of Rights and the Fourteenth Amendment. The author then proceeds to discuss the freedoms of expression and religion, the right to bear arms, the rights of privacy, and the rights of the accused. All of these individual rights are examined in an historical as well as contemporary context. The chapter is concluded with a discussion of rights and the war on terrorism and assesses the role of the courts in a free society.

The chapter opens with the Creighton case and the FBI’s use of a warrant-less search. The case demonstrates the continuing relevance of civil liberties within the framework of the U.S. Constitution.

I.The Constitution: The Bill of Rights and the Fourteenth Amendment

The Constitution’s failure to provide for individual rights led to the Bill of Rights, and the Supreme Court has interpreted what those rights mean in practice.

  • At first the Bill of Rights applied only to the national government. Today, most of the rights contained in the Bill of Rights are protected from action by the state governments.
  • The due process clause of the Fourteenth Amendment has been invoked by the Supreme Court to prevent the states from abridging most Bill of Rights protections.
  • This process is known as selective incorporation—the process by which certain of the rights contained in the Bill of Rights become applicable through the Fourteenth Amendment to actions by the state governments.
  • Initially the Supreme Court held back on using selective incorporation to protect the rights of the accused, but reversed course in the 1960s and began to enforce protection of these rights.

II.Freedom of Expression

Freedom of expression is the most basic of democratic rights.

  • Freedom of expression is the right of individual Americans to hold and communicate thoughts of their choosing.
  • Though freedom of expression is not an absolute right, it has received broad protection from the courts in recent decades.

Free political expression has not always been valued as highly as it is today.

  • The Sedition Act of 1798 was the first time that the national government restricted free expression.
  • Substantial limits were placed on free expression in the 1950s due to fears of communist subversion.

Over time, a set of standards has evolved regarding when it is permissible for government to infringe on political expression.

  • Justice Holmes’s clear-and-present-danger test stipulates that political expression can be restricted only if it poses a clear and present danger to the nation’s security or to others. Justice Stone argued that First Amendment rights of free expression are the fundamental basis of liberty in the United States.

  • The courts have protected the right to free assembly and the right to symbolic speech, though some reasonable restrictions are allowed. Symbolic speech or assembly deemed to be dangerous to the public or national security can be limited. Symbolic speech has been given some protection by the Court, though not as much protection as verbal speech receives.
  • The courts have held that prior restraint, or prohibition of expression or publication before the fact, is generally unconstitutional. There shall be no prior restraint on freedom of the press, though the press can be held accountable for what it publishes, particularly with respect to private citizens. National security concerns are often used to justify restriction of expression or of the press, though federal judges have not always concurred.
  • Obscenity is a form of expression that is not protected by the First Amendment and thus can legally be prohibited, though it has been difficult for the courts to define a standard by which speech can be deemed obscene.

III.Freedom of Religion

The establishment clause is the First Amendment provision that government may not favor one religion over another, or religion over no religion, and that prohibits Congress from passing laws respecting the establishment of religion.

  • A wall of separation must be maintained between church and state.
  • The Supreme Court has allowed some establishment activities but disallowed others. In an important ruling in 2002 involving Ohio law, the justices allowed some students in Cleveland to receive tax-supported vouchers to attend private or parochial schools.
  • Since the 1960s, the Supreme Court has consistently reaffirmed the ban on state-sponsored prayer.

The free-exercise clause stipulates that Americans may believe in any religion or no religion.

  • Even though Americans can believe in any religion they so desire, they are not always free to act on their beliefs.
  • The Supreme Court tries to balance any potential conflict between the free-exercise and establishment clauses, though sometimes one must yield to the other.

IV.The Right to Bear Arms

The Second Amendment was widely understood as to prevent the federal government from abolishing state militias, but there was disagreement over whether the amendment also gave individuals the right to possess weapons outside their use in military service.

  • The Supreme Court did not provide an interpretation of the Second Amendment until 2008 when it invalidated the District of Columbia’s ban on individual ownership of handguns.
  • Because the District of Columbia is a federal territory, questions remain about whether or not this interpretation can or would be enforced in the states.

V. The Right of Privacy

The right of privacy is not an enumerated right; rather, it was enunciated in the 1965 case of Griswold v. Connecticut.

  • According to the Supreme Court, the right of privacy underlies other American individual protections and is thus as old as the Bill of Rights.
  • There are zones of privacy upon which the government cannot infringe.
  • The right of privacy was the constitutional basis of the Roe v. Wade decision, which gave women the right to choose an abortion and overturned criminal abortion statutes.
  • Roe has not been overturned, but the public remains divided on abortion.
  • Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Gonzalesv.Carhart (2007) have placed some restrictions on abortion.

VI.Rights of Persons Accused of Crimes

  • Due process of law is rooted in the idea of ensuring justice for all, especially persons accused of crime. Procedural due process refers to procedures that must be followed before the accused can legitimately be punished for an offense.
  • The Fourth through Eighth amendments specify a set of procedural safeguards such as protection from unreasonable searches and seizures, self-incrimination, and unfair trials and punishments.
  • The Fourth Amendment protects against unreasonable search and seizure, but the Supreme Court has allowed warrantless searches in some situations.
  • The Fifth Amendment protection against self-incrimination led to the creation of the Miranda warnings in Miranda v. Arizona (1966).
  • Accused individuals are guaranteed the right to a fair trial, which includes legal counsel and an impartial jury.
  • The exclusionary rule prevents evidence obtained illegally from being used against a defendant, though the Supreme Court has allowed some exceptions to this rule.

  • The states traditionally had leeway in differing with federal procedures, but the selective incorporation of procedural rights has reduced their discretion.
  • The Bill of Rights prohibits cruel and unusual punishment. The Court and most Americans favor the death penalty, but a substantial minority is opposed.
  • The Constitution does not guarantee an appeal after conviction, but the federal government and all states permit at least one appeal.

VII. Rights and the War on Terrorism

When the nation is at war, courts typically allow government to exercise authority that would not be permitted in peacetime.

  • After the Japanese attack on Pearl Harbor in 1941, President Franklin Roosevelt ordered the forced evacuation of thousands of Japanese Americans living on the West Coast. They were forcibly relocated to detention camps, and the Supreme Court upheld this policy as constitutional.
  • Following the terrorist attacks on the United States on September 11, 2001, the Bush administration announced that enemy combatants (those judged to be engaged in terrorism directed at the United States) would be detained without access to lawyers or family members until the president decided to release them. The administration also claimed to possess the authority to round up and hold in secret any individuals living in the United States who were suspected of terrorist activities. The Supreme Court granted some detainees the right to challenge their incarceration in court.
  • President Bush received greater surveillance powers from Congress with the passage of the USA Patriot Act; President Obama has not released any information about these activities for fear of damage to national security.

VIII. The Courts and a Free Society