Civil Liberties

I. Making Constitutional Rights Apply to the States

A.    Early Practices—for many years the Constitution was ratified, the rights it protected, including the Bill of Rights, only applied to the national government.

1.      Barron v. Baltimore (1833)—Barron sued the city of Baltimore because construction the city undertook caused his busy wharf to silt-up enough that it could no longer accommodate large ships. Barron claimed this action violated his 5^th Amendment rights because his property had been “taken” without just compensation, and without due process of law. The Court, unfortunately for Barron, found that the 5^th Amendment was only applicable to the federal government.

2.      The Slaughterhouse Cases—after the end of the Civil War, the city of New Orleans passed a law that severely regulated the operation of slaughterhouses in the city. Because of concerns over health hazards regarding these establishments, the city closed all of them operating in the city, and created the Crescent City Livestock Landing & Slaughterhouse Company to operate as a city-controlled monopoly. The company agreed to observe all laws regarding the disposal of waste, the prices of cattle, the price of beef, and that they would allow butchers in the city to operate within its confines, and pay them a reasonable rate. This was not enough to satisfy the butchers in New Orleans, however, a group of whom sued the city claiming their 14^th Amendment rights were being violated in regard to the equal protection clause. The majority of the court dismissed this claim, pointing out that the 13^th, 14^th, and 15^th Amendments were intended by Congress to grant freed slaves basic constitutional rights. A dissenting opinion, written by Justice Stephen J. Field, portended the future, arguing that the 14^th Amendment granted Americans the same rights in the states that they enjoyed with the Constitution and the federal government.

3.      Chicago, Burlington, and Quincy Railroad v. City of Chicago (1897)—The city of Chicago, in an expansionary phase, needed to extend a street through what was then private property—including the right-of-way for the Burlington Railroad. The city compensated the owners of the property using their rights of eminent domain. The railroad company sued because they only received $1 in compensation. The Court, for the first time (in a 7-1 decision), found that the 14^th Amendment applied to the 5^th Amendment rights about due process, and meant that states and other governmental bodies had to ensure that they followed constitutional practices in this matter—although they also found that the Illinois law regarding eminent domain, while flawed, had been followed in this case, and that the railroad was due no further compensation.

4.      Gitlow v. New York (1925)—Gitlow, a socialist, was arrested in New York for distributing literature that called for the use of strikes and other social upheavals to foment socialist revolution. Gitlow’s attorneys argued that, since no revolution was fomented, that the state was prohibiting utterance which in fact did not result in violent action. The Court, while finding that through the 14^th Amendment that the 1^st Amendment did apply to the states, also found that a state may prohibit speech which advocates “dangerous tendencies” like revolution.

5.      Palko v. Connecticut (1937)—Palko was charged with murder in the first degree in the state of Connecticut. At the trial, however, the with the evidence presented, the jury only found Palko guilty of murder in the second degree, and Palko was sentenced to life in prison. The state later uncovered other, more incriminating evidence, and put Palko on trial again for the same murder. Palko’s attorneys argued that he was placed in double jeopardy—that he was being tried for the same crime twice, in violation of the 5^th Amendment. In the appeal the the US Supreme Court, the court found, for the first time, that through the 14^th Amendment, that the 5^th Amendment was applicable to the states, and stayed Palko’s execution.

II.                Why Are Americans so Preoccupied with Rights?

A.    Freedom of Expression—over the past two centuries the courts have more or less steadily broadened the definition of free expression.

1.      Alien and Sedition Act (1798)—made it illegal to publish “any false, scandalous, and malicious writing” against the president of member of Congress. These restrictions placed on the freedom to criticize the government became a major issue in the 1800 presidential election, and contributed to the defeat of John Adams in that election. Compare the criticism of the president then with more recent times, when President George W. Bush was regularly ridiculed, or the claims that President Barak Obama had falsified his Hawaiian birth certificate.

2.      Alien and Sedition Act (1918)—made it illegal to utter or publish anything that could be construed as impeding the war effort. Most famously, this law was used against Eugene V. Debs, who was arrested in Canton, Ohio, for calling the impending US involvement in World War I a “rich man’s war.” For comparison, consider the government reaction against the protests of the US involvement in Vietnam, or the protests against the Iraq war (including Desert Storm) before military engagement began.

3.      Laws against “obscenity”

a.      What is obscenity?

b.      Margaret Sanger and the dissemination of birth control information

c.       Pre-code Hollywood; self-censorship and the Hays Code; the evolution to the Motion Picture Association of America (MPAA) ratings system.

4.      Evolution of permissible expression

a.      Preferred position—the right of self-expression, while not absolute, does occupy a higher, or “preferred” position than other constitutional rights

b.      No prior restraint—with scarcely any exceptions, courts will not allow the government to restrain or censor in advance any speech or writing—even when they will allow punishment after the fact.

c.       Imminent danger—You may utter inflammatory statements statements or urge people to consider committing dangerous actions, but unless there is an “imminent danger” that those utterances will actually lead to illegal activity, they are constitutionally protected.

d.      Neutralilty—the government must be neutral—it cannot favor one particular group over another.

e.       Clarity—if a law forbids some form of expression, it must contain a clear definition of it, so people are certain as to where the line has been drawn.

f.        Least means—if it is necessary to restrict the rights of one person to speak or write to protect the rights of another, this restriction should involve the least intrusive means to achieve that end.

5.      Unprotected speech

a.      Libel—injurious written statements about another person (and the fact that they are true is not necessarily a defense).

b.      Restrictions on symbolic speech—usually, one cannot claim that an illegal action should go unpunished because it conveys a political or social message

c.       Fighting words”—calling someone a nasty name to provoke them is not protected speech (like “Dr.” Laura Schlesinger)

d.      Incitement to immediate violent action—calling for an angry crowd to riot would not be protected speech.

e.       Obscenity—is not protected expression, but there is great difficulty in determining what obscenity is—although, to paraphrase Justice Potter Stewart, we certainly know it when we see it.

6.      Free Expression for “the people”—but who are “the people?” Does this include high school students? Corporations? Various Associations?

a.      Campaign finance—is money a form of expression?

7.      Free Speech for Me, But Not for Thee—people are quick to defend freedom of expression for themselves, and for the ideas that they agree with, but often call for restrictions on freedom of expression for others who express unpopular ideas.

a.      American Civil Liberties Union (ACLU)—founded to defend persons arrested and tried under the Alien and Sedition Act of 1918, the ACLU is an association of free expression absolutists. Often depicted as a “liberal” organization, the ACLU has also defended the rights of the American Nazi Party to march in Skokie, Illinois, where many residents were Jews (and a sizable number were Holocaust survivors).

III.               Church and State

A.    Free Exercise Clause

1.      Mormon Church/Islamic practice of multiple wives; the Native practice of ingesting peyote

2.      Questions of Conscience—persons whose beliefs dictate that war is immoral are exempted from directly serving in the military—although not from paying taxes to support fighting a war.

B.     The Establishment Clause—“Congress shall make no law respecting an establishment of religion…” Does this mean there should be some kind of “wall” separating church and state?

1.      Historical antecedents—the United States was a haven for religious dissenters—but often those dissenters made their sect the tax-supported established church. The multiplicity of religious sects, and the disputes engendered because of it, let the Framers to conclude that freedom of religion could best be promoted on a national basis by prohibiting the establishment of a national church.

2.      Influence of the Enlightenment—many of the Framers, influenced by the Age of Enlightenment, were Deists—believers in a higher power somewhere, but who rejected the divinity of Jesus Christ.

3.      Wall of Separation—the wording is from Thomas Jefferson (a deist), who sought to disestablish the Episcopal Church in Virginia, rather than in the Constitution anywhere.

a.      Everson v. Board of Education (1947)—the “wall of separation” principle is announced.

b.      In God We Trust/under God”—the former phrase was added to coins and paper money, and the latter phrase was added to the Pledge of Allegiance in the 1950s

c.       Ten Commandments (1956)

d.      Teacher-led prayer in schools banned 1962

IV.               Crime and Due Process

A.   Exclusionary Rule—holds that evidence gathered in violation of the Constitution cannot be used in a trial. This rule has been used to implement two provisions from the Bill of Rights—the 4^th Amendment right to be free from unreasonable search and seizure, and the 5^th Amendment right not to be compelled to give evidence against oneself.

1.      Wolf v. Colorado (1949)—Julius A. Wolf was convicted in Colorado of performing illegal abortions—but the evidence was gathered in an illegal seizure, since the police did not present a search warrant before entering the premises. Wolf’s lawyers argued that this should prevent the evidence from being used in court. Justice Frankfurter, in the majority opinion held that while some of the 4^th Amendment could be applied to the states, it could not be done through the 14^th Amendment, since it simply was not applicable to the first 8 amendments to the Constitution—“other measures” would have to be relied upon to prevent police from undertaking illegal searches.

2.     Mapp v. Ohio (1961)—the Supreme Court effectively overturned Wolf v. Colorado, and held that the 4^th Amendment prohibitions on illegal search and seizure was applicable to the state through the 14^th Amendment.

B.     Search and Seizure—when is a search of one’s person or belongings reasonable?

1.      Search warrant

2.      Probable cause—when a person is caught in the act of doing something illegal, or are arrested in suspicion of engaging in some illegal act, police may search you, things in plain view, and things under your immediate control.

a.      Driving while black/brown

b.      Breathylizer test

3.      Miranda Warning—as seen on countless cop shows since the late 1960s

4.      Gideon v. Wainwright (1963)—established the right to counsel for all indigent defendents, rather than only those in capital cases.

5.      Good Faith Exception—the admission of some evidence that was gathered in violation of the Constitution is now permitted if the violation was the result of a technical or minor error.

C.     Terrorism and Civil Liberties—the attacks on 9/11 have greatly altered the procedures the government may use to investigate terrorist attacks—but these “protections” also threaten civil liberties.

1.      FISA  Courts—established by the Foreign Intelligence Services Act (1978), in response to the excesses that came to light during the Watergate investigation. FISA was amended by the Patriot Act of 2001. The government goes to a FISA court to obtain warrants authorizing the tapping of telephone, cell phone, internet connections, and voice mail of suspected terrorist activity.

2.    Grand jury—the government can now share with other government agencies what was learned in secret grand jury hearings.

3.      Immigration—the attorney general may hold non-citizens who are thought to be a security risk up to 7 days without charges; if not charged with a crime or deported after that time, the person may be held indefinitely as long as they are certified as a security risk.

4.      Money laundering—the government was given new powers to track the movement of money across US borders and among banks.

5.      Trials by military tribunals, rather than in civilian courts; “enemy combatant” status.