Understanding Bill of Rights' Evolution in Protecting Civil Liberties - Prof. Audrey Hayne, Study notes of Local Government Studies

Download Understanding Bill of Rights' Evolution in Protecting Civil Liberties - Prof. Audrey Hayne and more Study notes Local Government Studies in PDF only on Docsity! 11/23/2010 1 Civil Liberties Chapter 5 CIVIL RIGHTS & CIVIL LIBERTIES
Civil Rights ◦ Those protections by government power ◦ Things government must secure on behalf of its citizens ◦ Equal opportunity
Civil Liberties ◦ The constitution’s protections from government power ◦ Rights that cannot be taken away:  Speech, Religion, Privacy CONSTITUTION
The constitution, as it emerged in 1787, did not seriously address civil liberties
Framers first thought a bill of rights was not necessary.
Others thought listing the rights might imply that the federal government had the authority to restrict freedoms not expressly protected. BILL OF RIGHTS
Framers understood that civil liberties policy would at times check majority preferences
First Amendment: ◦ Congress shall make no law:  Respecting an establishment of religion  Prohibiting the free exercise thereof  Abridging the freedom of speech  Or of the press  Of the right of the people to peaceably assemble  And to petition the government for redress of grievances BILL OF RIGHTS CHECKS MAJORITY RULE
The clear and absolute language of the Bill of Rights offers little latitude to politicians who might want to change its constitutionally protected liberties. ◦ Some not as clear cut:  Establishment clause of First Amendment  Does it prevent prayer in public schools?  Eighth Amendment  What does “cruel and unusual punishment” mean? NATIONALIZATION OF CIVIL LIBERTIES
Over the past century or so, determination of national policy in the field of civil liberties has shifted. ◦ Once exclusive jurisdiction of states and communities.  Barron v. Baltimore (1833)  Public state blockage of a private wharf  Barron sued arguing the 5th amendment (no person shall be deprived of … property, without due process of law) applied at the state level  Court said it doesn’t
Basically rendered the Bill of Rights meaningless, for most citizens quarrels were with their states and not the federal government 11/23/2010 2 INCORPORATION
Incorporation is the process of bringing state laws and practices under Bill of Rights protections by applying the 14th Amendment to the states.
The Fourteenth Amendment was intended initially to protect former slaves by explicitly declaring the rights of citizenship were not subject to state controls. INCORPORATION VIA THE 14TH AMENDMENT
Through the process of selective incorporation– the piecemeal application of the various provisions of the Bill of Rights to state law and practices – civil liberties have gradually “nationalized”
Selective incorporation was a process largely worked out through the courts
Trends in civil liberties tend to reflect the shifting ideological composition of the court. INCORPORATION VIA THE 14TH AMENDMENT
First in 1897 with the 5th Amendment ◦ Taking property without compensation
In the 1930s and 1940s the First Amendment freedoms were taken up by the court
In the 1960s: ◦ Fourth (Search and Seizure) ◦ Fifth (Double Jeopardy, Self- Incrimination) ◦ Sixth (Right to a speedy trial, confrontation of witnesses) FREEDOM OF SPEECH
Amendment 1: “Congress shall make no law… abridging the freedom of speech”
Freedom of speech is essential to representative government and the exercise of individual autonomy FREE EXPRESSION AND NATIONAL SECURITY
Near the end of WWI many states had enacted sedition laws that forbade advocacy of violence or other “unlawful” means to change the government.
Schenck v. United States (1919) - attempt to define the degree to which federal legislation must protect free speech.
Justice Oliver Wendell Holmes created the “clear and present danger test” ◦ Now have imminent lawless action test