Chapter 15. 2 A Balancing Act How well do the courts respond to conflicts that pit freedom against order or freedom against equality? Are freedom,

Chapter 15

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A Balancing Act How well do the courts respond

to conflicts that pit freedom against order or freedom against equality?

Are freedom, order, or equality ever unconditional?

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To Pledge or Not to Pledge,

That is the Question

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Constitutional Rights

Framers did not include a bill of rights in the Constitution

To ensure ratification, 12 amendments submitted to the states Ten ratified in 1791

Civil liberties – restraints on government

Civil rights – powers and privileges that cannot be taken away

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Britain’s Bill of Rights Britain has no written constitution Began enforcing the Human Rights

Act in October 2000 In 2008, a joint committee of

Parliament recommended consensus-based UK Bill of Rights and Freedoms Would not give power of judicial review

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Freedom of Religion Congress shall make no law

respecting the establishment of religion, or prohibiting the free exercise thereof.

Two different guarantees: Establishment clause Free-exercise clause

At the time, religion believed to be an issue for state, not national government

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Freedom of Religion Supreme Court rulings on freedom of

religion not definitive Freedom of belief unlimited, but freedom to

practice a belief can be limited Government cannot benefit directly from

practice of religion, but can indirectly benefit

Because most Americans identify with a religious faith, majoritarians would argue government should support religion

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The Establishment Clause

Bars government sponsorship or support of religious activity “A wall of separation between church and

State” Lemon v. Kurtzman (1971) established test

for determining constitutionality of programs and laws under establishment clause: Must have secular purpose Primary effect not to advance or inhibit religion Must not entangle government excessively

with religion9

Establishment Clause Key Cases

Lemon v. Kurtzman Agostini v. Felton Zelman v. Simmons-Harris Lynch v. Donnelly Salazar v. Buono Engle v. Vitale

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The Crux of the Matter

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School Prayer Supreme Court consistently equates

prayer in public schools with government support of religion No state-approved prayer No Bible reading or Lord’s Prayer No nonsectarian prayers at graduation No student-led prayers at public high

school football games Religions training only after school

hours These rulings support minority rights

but cause majority discontent12

Team Religion Moves from Field to Stands

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Let Us Pray

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The Free-Exercise Clause

Supreme Court has avoided absolute interpretations of this restriction Rulings attempt to distinguish religious

beliefs from actions based on those beliefs

Some areas of conflict: Military service Working on the Sabbath

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Three-Pronged Test Sherbert v. Verner (1963): First

Amendment protects observance as well as belief

Neutral laws that burden the free exercise of religion subject to strict scrutiny: Justified by “compelling government

interest” Narrowly tailored to achieve legitimate

goal Least restrictive means to achieve that

interest16

Freedom of Expression Congress shall make no

law….abridging the freedom of speech, or of the press; or of the right of people to peaceably assemble, and to petition the Government for a redress of grievances.

Majority of the Supreme Court have never agreed this guarantee absolutely inviolable

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Freedom of Expression Does not mean elimination of risk of

ostracism or criticism by others Supreme Court generally rules

against prior restraint, but does sometimes rule to limit expression Can regulate and punish advocacy of

ideas that promote highly probable lawless action

Can limit means of communicating ideas18

Freedom of Speech Clear and present danger test established

in Schenck v. United States (1919) Protections for speech and press applied to

states in Gitlow v. New York (1925) Dennis v. United States (1951) established

grave and probable danger test Finally, Brandenburg v. Ohio (1969)

expanded right to political speech through imminent lawless action ruling

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Symbolic Expression Generally less protected than

pure speech However, certain types protected Tinker v. Des Moines

Independent County School District (1969) said school did not show forbidden conduct would substantially interfere with school discipline

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Order Versus Free Speech: Fighting Words and

Threatening Expression Fighting words exception to protections

of free speech First defined in Chaplinsky v. New Hampshire

Federal Court ruled Communications Decency Act of 1996 unconstitutional

Recent attempts to limit speech on the Internet also found unconstitutional Reno v. ACLU (1997) Internet seen as more like free press than

television

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Freedom of the Press Government “shall make no

law….abridging the freedom…of the press.”

Ability to collect and report information without government interference essential to free society

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Shock Jock Rocks

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Defamation of Character

Libel is written defamation of character Because of New York Times v.

Sullivan (1964), public officials must prove actual malice

Other public figures added in 1967 Even outrageous and offensive

criticisms of public figures protected

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Prior Restraint and the Press

Prior restraint places unacceptable burden on free press

Ruling in New York Times v. United States (1971) concluded the government had not shown publication of Pentagon Papers would cause immediate, inevitable, and irreparable harm

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Freedom of Expression Versus Maintaining Order Freedom of the press does not

override needs of law enforcement Freedom of the press and

expression can be limited in schools, provided restrictions serve a “valid educational purpose.” Articles in school newspapers “Bong Hits 4 Jesus”

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Hey Dudes, Let’s Protest

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The Rights to Assemble Peaceably and to Petition

the Government Congress shall make no law…abridging …

the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”

Roots of the right to petition in the Magna Carta; right to assemble came later

When freedom and order conflict, justices of the Supreme Court strike the balance

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The Right to Bear Arms A well-regulated militia, being

necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

Gun control advocates believe amendment supports only right to maintain collective militias

Gun rights advocates assert amendment protects right of individuals to own and use guns

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Regulation of Guns In District of Columbia v. Heller (2008),

Supreme Court ruled individuals have right to keep loaded handgun at home for personal defense

After that ruling, still unanswered questions: Does this ruling apply to the states? Does this ruling apply to other kinds of guns? What is the standard for future challenges to

gun restrictions? Later, in McDonald v. Chicago (2010),

Supreme Court ruled state and local governments cannot prohibit right to bear arms

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Right to Bear Arms

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Applying the Bill of Rights

to the States Major purpose of Constitution to

define divisions of power between national and state governments

Initially, Bill of Rights applied only to national government

Fourteenth Amendment’s due process clause used to apply Bill of Rights to the states

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The Fourteenth Amendment:

Due Process of Law Section 1….No state shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.

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Due Process Clause Supreme Court’s interpretations of

the due process clause applied Bill of Rights’ limitations to the states

Two central meanings: Requires government to follow

appropriate procedures Forbids unreasonable government

action

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The Fundamental Freedoms

First application of due process clause in 1897 and involved Fifth Amendment’s prohibition against taking private property without just compensation

Supreme Court ruled due process also protected free speech and free press from limitations by the states

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Figure 15.2

The Selective Incorporation of the Bill of Rights

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The Fundamental Freedoms

Definition of fundamental freedoms a slow process Critical test in Palko v. Connecticut

(1937) Supreme Court moved from “fair

and enlightened sense of justice” to “American scheme of justice” Palko finally overturned in 1969

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Criminal Procedure: The Meaning of Constitutional

Guarantees Fourth through Eighth amendments

specify government’s behavior in criminal proceedings

Some variations allowed at state level Differences in jury size and requirement

for a unanimous verdict allowed

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Fundamental Rights Applied to States

Right to an attorney defined by Gideon v. Wainwright (1963)

Right to jury trial guaranteed in Duncan v. Louisiana (1968)

Suspects must be informed of constitutional rights as a result of Miranda v. Arizona (1966)

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Miranda v. Arizona Established warning requirement for

those taken into custody and questioned You have the right to remain silent Anything you say can be used against

you in court You have the right to talk to an attorney

of your own choice before questioning If you cannot afford to hire a lawyer, a

lawyer will be provided without charge40

Search and Seizure Protection against arbitrary search

and seizure applied to states by Wolf v. Colorado (1949) Allowed states to decide how to handle

illegally obtained evidence Exclusionary rule applied to states by

Mapp v. Ohio (1961) United States v. Leon established good

faith exception Other exceptions include lack of

“knock and announce” and police negligence

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Wiretapping in the Digital Age

Communications Assistance for Law Enforcement Act (CALEA) governs wiretaps

Emergence of voice over Internet protocol calls complicates interceptions Complicated compliance Enormous data volumes Encryption, especially with Skype

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The USA PATRIOT Act Government decision to forgo

some liberties to secure greater order after terrorist attack on September 11, 2001 This shift worries some civil

libertarians One area of concern is Section 215,

covering warrantless searches of private records

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Detainees and the War on Terrorism

President George W. Bush designated detainees as “enemy combatants” and denied access to attorneys and hearings Supreme Court rejected this position in

two cases decided in 2004 Other cases challenged Bush

administration policies Hamadan v. Rumsfeld (2006) Boumediene v. Bush (2008)

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The Ninth Amendment and Personal Autonomy

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Griswold v. Connecticut (1965) ruling asserted a “zone of privacy” in intimate, personal choices Privacy rights guaranteed by the Ninth

Amendment and applied to the states by the Fourteenth Amendment

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Roe v. Wade (1973) Ruling legalizing abortion based on

concept of constitutional privacy rights Affected laws of 46 states Treats the three trimesters of pregnancy

differently Subsequent Supreme Court rulings have

allowed some restrictions on abortion Use concept of “undue burden”

Abortion issue pits freedom against order

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Personal Autonomy and Sexual Orientation

Right-to-privacy cases opened way for consideration of other social issues involving homosexuals Bowers v. Hardwick (1986) Lawrence and Garner v. Texas (2003) Defense of Marriage Act of 1996 State laws banning or allowing same-sex

marriage or unions Pluralist mechanisms like the initiative

and referendum offer a way to overturn judicial intervention

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Adam and Eve or Adam and Steve?

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