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Without a warrant from a judge, the police and FBI had secretly attached a GPS trackingdevice to Antoine ones!s car and knew e"actly where it was at any time of the day ornight# For a month, they monitored the car!s every turn# $hey su%se&uently arrested

ones on charges of conspiracy to sell drugs# $he evidence o%tained through the trackingdevice helped prosecutors to convict him, and he was sentenced to life in prison#

• ones appealed his conviction and won a temporary victory when a federalappellate court'noting that individuals are protected %y the Fourth Amendmentfrom (unreasona%le searches and sei)ures*'concluded that the o+cers shouldhave sought a warrant from a judge, who would have decided whether they hadsu+cient cause to justify a search of ones!s possessions, much less the placing ofa tracking device on his car#

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• In a unanimous ./- vote, the Supreme 0ourt in United States v. Jones 12- 23upheld the lower/court!s ruling# $he 0ourt rejected the government!s argumentthat attaching a small device to a car!s undercarriage was too trivial an act toconstitute an (unreasona%le search#* $he government had also claimed thatanyone driving a car on pu%lic streets can e"pect to %e monitored, evencontinuously in some circumstances'after all, police had legally %een (tailing*suspects for decades# $he 0ourt rejected those arguments, though the justicesdisagreed on e"actly why the 0onstitution prohi%its what the o+cers had done#Five justices said that the Fourth Amendment!s protection of (persons, houses,papers, and e4ects* reasona%ly e"tends to private property such as anautomo%ile# For them, the fact that the o+cers had placed a tracking device on thesuspect!s property without a warrant invalidated the evidence# Four justices wentfurther, saying that the o+cers5 actions intruded not only on the suspect!s propertyrights %ut also on his (reasona%le e"pectation of privacy#* At its core, they said, theFourth Amendment (protects people, not places#* 2

• As the case illustrates, issues of individual rights have %ecome increasinglycomple"# $he framers of the 0onstitution could not possi%ly have envisioned a timewhen technology would have ena%led authorities to electronically track people!slocations# $he framers understood that authorities would sometimes %e tempted tosnoop on people, which is why they wrote the Fourth Amendment# At the sametime, the amendment protects Americans not from all searches %utfrom unreasonable searches# $he pu%lic would %e unsafe if law o+cials could nevertrack a suspect# 6et citi)ens would forfeit their privacy if police could track at willanyone they choose# $he challenge for a civil society is to esta%lish a level ofpolice authority that meets the demands of pu%lic safety without infringing undulyon personal freedom# $he %alance point, however, is always su%ject to dispute# Inthis particular case, the Supreme 0ourt sided with the accused# In other cases, ithas sided with law enforcement o+cials#

• $his chapter e"amines issues of civil liberties 'speci7c individual rights, such asthe right to a fair trial, that are constitutionally protected against infringement %ygovernment# Although the term civil liberties is sometimes used synonymouslywith the term civil rights, they can %e distinguished# 0ivil rights 1which will %ee"amined in 0hapter 83 are a &uestion of whether mem%ers of di4ering groups'racial, se"ual, religious, and the like'are treated e&ually %y government and, insome cases, %y private parties# 9n the other hand, civil li%erties refer to individualrights, such as freedom of speech and the press# $hey are the su%ject of thischapter, which focuses on these points:



Page -2• 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 !primaril" procedural safeguards#

designed to ensure that individual rights are respected b" government.• $ver the course of the nation%s histor", &mericans' civil liberties have been

expanded in law and more full" protected b" the courts. 9f special signi7cance has%een the Supreme 0ourt!s use of the Fourteenth Amendment to protect individualrights from action %y state and local governments#

• (ndividual rights are constantl" being weighed against the demands of ma)oritiesand the collective needs of societ". All political institutions are involved in thisprocess, as is pu%lic opinion, %ut the judiciary plays a central role and is theinstitution that is typically most protective of civil li%erties#

The Bill of Rights, the Fourteenth Amendment, andSelective Incorporation• ;hat Is Selective Incorporation<• As was e"plained in 0hapter 2, the 0onstitution!s failure to enumerate individual

freedoms led to demands for the Bill of Rights. =ati7ed in >. , these 7rst tenamendments to the 0onstitution list a set of rights that the federal government iso%liged to protect# Among them are freedoms of speech, press, assem%ly, andreligion 1First Amendment3? the right to %ear arms 1Second Amendment3?protection against unreasona%le search and sei)ure 1Fourth Amendment3?protection against self/incrimination and dou%le jeopardy 1Fifth Amendment3? rightto a jury trial, to an attorney, and to confront witnesses 1Si"th Amendment3? andprotection against cruel and unusual punishment 1@ighth Amendment3#

• At the time the Bill of =ights was adopted, it applied only to action %y the federalgovernment and not also to action %y the states, a position that the Supreme 0ourta+rmed a few decades later# $oday, however, most of the rights contained in theBill of =ights are also protected from action %y the state governments, adevelopment that owes to adoption of the Fourteenth Amendment in the aftermathof the 0ivil ;ar#

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Americans5 civil li%erties include protection against unreasona%le search and sei)ure,which is intended to make individuals secure in their persons and their homes# Policecannot lawfully intrude without evidence suggesting an individual is involved in criminalactivity# @ven then, police may have to o%tain a search warrant, which re&uires them toconvince a judge that their evidence is solid and not %ased on speculation or a dislike ofthe suspect#

•

Soon after the war, several southern states enacted laws denying newly freedslaves their rights, including the rights to own property and to travel freely#0ongress responded %y proposing a constitutional amendment designed to protecttheir rights# $he former 0onfederate states with the e"ception of $ennesseerefused to ratify it# 0ongress then passed the =econstruction Act, which placed thesouthern states under military rule until they did so# In C , the FourteenthAmendment was rati7ed# It includes a due process clause that says (Do Stateshall E deprive any person of life, li%erty, or property, without due process of law#*

• Initially the Supreme 0ourt largely ignored the due process clause, allowing statesto decide for themselves what rights their residents would have# In .28, however,the 0ourt changed course %y invoking the Fourteenth Amendment in a caseinvolving state government# Although the 0ourt upheld Dew 6ork!s law making itillegal to advocate the violent overthrow of the #S# government, it ruled in *itlowv. +ew ork that states do not have complete power over what their residents canlegally say# $he 0ourt said: (For present purposes we may and do assume thatfreedom of speech and of the press'which are protected %y the First Amendmentfrom a%ridgement %y 0ongress'are among the fundamental personal rights and

li%erties5 protected %y the due process clause of the Fourteenth Amendment fromimpairment %y the states#* H

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• $he ruling marked a fundamental shift in constitutional doctrine# In essence, the0ourt had concluded that a right protected %y the Bill of =ights from action %y thefederal government was now also protected from action %y individual states#Shortly thereafter, the 0ourt in a series of cases applied the new principle to otherFirst Amendment rights# $he 0ourt invalidated state laws restricting e"pression inthe areas of speech 1 Fiske v. -ansas 3, press 1 +ear v. innesota 3, religion 1 /amiltonv. 0egents, Universit" of 1alifornia 3, and assem%ly and petition 1 DeJonge v.$regon 3#8 $he +ear decision is the %est known of these rulings# ay Dear was thepu%lisher of a inneapolis weekly newspaper that regularly made defamatorystatements a%out %lacks, ews, 0atholics, and la%or union leaders# Jis paper wasclosed down on the %asis of a innesota law %anning (malicious, scandalous, ordefamatory* pu%lications# Dear appealed the shutdown on the grounds that itinfringed on freedom of the press, and the Supreme 0ourt ruled in his favor, sayingthat the innesota law was (the essence of censorship#* C

• $hree decades later, the Supreme 0ourt e"tended the principle to include therights of the criminally accused# $he %reakthrough case was app v. $hio 1 .C 3#Police had forci%ly entered the home of Kollree app, saying they had a tip shewas har%oring a fugitive# $hey found no one %ut handcu4ed her anyway and %eganrummaging through her possessions, where they found o%scene photographs#

app was convicted of violating an 9hio law that prohi%ited the possession of suchmaterial# $he Supreme 0ourt overturned her conviction, ruling that police hadacted unconstitutionally, citing the Fourth Amendment prohi%ition on unreasona%lesearches and sei)ures# $he 0ourt concluded that evidence ac&uired through anunconstitutional search cannot %e used to o%tain a conviction in state courts# >

• Kuring the .C-s, the 0ourt also ruled that defendants in state criminalproceedings must %e provided a lawyer in felony cases if they cannot a4ord to hireone, cannot %e compelled to testify against themselves, . have the right to remainsilent and to have legal counsel at the time of arrest, - have the right to confrontwitnesses who testify against them, must %e granted a speedy trial, 2 have theright to a jury trial in criminal proceedings, and cannot %e su%jected to dou%le

jeopardy# H

• In these various rulings, the 0ourt was applying what came to %e called thedoctrine of selective incorporation 'the use of the Fourteenth Amendment toapply selected provisions of the Bill of =ights to the states# In its *itlow ruling, fore"ample, the 0ourt selectively incorporated the First Amendment protections offree speech and press into the Fourteenth Amendment, there%y protecting themfrom infringement %y states and localities# 1$he incorporation process is calledselective %ecause the Supreme 0ourt has chosen to protect some Bill of =ightsguarantees from state action %ut not others# @ven today, for e"ample, the SeventhAmendment right to a jury trial in civil cases is not %inding on the states#3

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J9; $J@ #S# KIFF@=SP !ITI"A! T#I$%I$& T#R '&# " (PARIS $S"ivil !iberties

• Individual rights are a cornerstone of the American governing system and receivestrong protection from the courts# $he government!s a%ility to restrict freee"pression is limited, and the individual!s right to a fair trial is protected %y



signi7cant due process guarantees, such as the right to legal counsel# According toFreedom Jouse, an independent organi)ation that tracks civil li%erties, the nitedStates ranks among the (most free* nations for its protection of civil li%erties#

any countries rank lower as a result of, for e"ample, their mistreatment ofpolitical opponents# In determining its civil li%erties rankings, Freedom Jouseevaluates countries for their policies in four areas: freedom of e"pression,associational and organi)ational rights, rule of law, and personal autonomy andindividual rights# $he accompanying chart shows how the nited States compareswith selected other countries on the Freedom Jouse inde"#

Page -C• )* ;hat do the (least free* countries on the chart have in common<• A* $he (least free* countries in the chart are characteri)ed %y one/party rule#• Selective incorporation through the Fourteenth Amendment!s due process clause

has %een of utmost importance in the protection of Americans5 civil li%erties#Because states and localities %ear most of the responsi%ility for maintaining pu%lic

order and safety, they are the authorities most likely to engage in actions thatinfringe on people!s rights# If they were allowed to determine for themselves whatthese rights mean in practice'for e"ample, how far local police can go ininterrogating suspects'Americans5 rights would %e at risk, and in some locationslargely ignored# As it stands, nearly all freedoms in the Bill of =ights are nownational rights and under the protection of the federal courts#

• In the following sections, the law and practice of Americans5 civil li%erties will %ee"amined, starting with rights protected %y the First Amendment#

Freedom of + pression• $he First Amendment provides for freedom of e pression 'the right of individual

Americans to communicate thoughts of their choosing 1see $a%le H/ 3# Some forms



of e"pression are not protected %y the First Amendment %ecause the courts haveconcluded that they fall outside the civic realm# Some forms of (commercialspeech* are of this type# For e"ample, pharmaceutical companies in their pu%licadvertising are re&uired %y law to disclose the harmful side e4ects of drugs#9%scene forms of se"ual e"pression'child pornography as an e"ample'also donot have First Amendment protection#L

ta%le H/ BI!! F RI&#TS* A S+!+"T+- !IST F FIRST A(+$-(+$T PR T+"TI $S

• First Amendment• Speech* 6ou are free to say almost anything e"cept that which is o%scene,

slanders another person, or has a high pro%a%ility of inciting others to takeimminent lawless action#

• Press* 6ou are free to write or pu%lish almost anything e"cept that which iso%scene, li%els another person, seriously endangers military action or nationalsecurity, or has a high pro%a%ility of inciting others to take imminent lawlessaction#

• Assembl * 6ou are free to assem%le, although government may regulate the timeand place for reasons of pu%lic convenience and safety, provided such regulationsare applied evenhandedly to all groups#

• Religion* 6ou are protected from having the religious %eliefs of others imposed onyou, and you are free to %elieve what you like#

Page ->• $he First Amendment had an inauspicious %eginning# Although the amendment

prohi%its 0ongress from a%ridging freedom of e"pression, 0ongress ignored therestriction in passing the Sedition Act of >. , which made it a crime to printharshly critical newspaper stories a%out the president or other national o+cials#

$homas e4erson called the Sedition Act an (alarming infraction* of the0onstitution and, upon replacing ohn Adams as president in - , pardoned those

who had %een convicted under it# Jowever, the Sedition Act was not ruled upon %ythe Supreme 0ourt, which left open the &uestion of whether 0ongress had thepower to regulate free e"pression and, if so, how far its power e"tended#

• $oday, free e"pression is vigorously protected %y the courts# Mike other rights, it isnot a%solute in practice# Free e"pression does not entitle individuals to saywhatever they want to whomever they want# Free e"pression can %e denied, fore"ample, if it endangers national security, wrongly damages the reputation ofothers, or deprives others of their %asic rights# Devertheless, in nearly everycircumstance Americans can freely e"press their political views without fear ofgovernment interference or retri%ution#

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Free Speech• ntil the twentieth century, free e"pression was rarely at issue in the nitedStates# Jowever, as the country %egan to get enmeshed in world a4airs and facethreats from a%road, the government started to place restrictions on e"pressionthat it %elieved was a danger to national security# A 7rst restriction was the . >@spionage Act, which prohi%ited forms of dissent that could have harmed thenation!s e4ort in ;orld ;ar I#

• $he legislation %ecame the o%ject of the 7rst/ever Supreme 0ourt free/e"pressiondecision# In Schenck v. United States 1 . .3, the Supreme 0ourt sustained theconviction of defendants who had distri%uted leaNets urging draft/age men torefuse induction into the military service# ;riting for a unanimous 0ourt, ustice



9liver ;endell Jolmes upheld the constitutionality of the @spionage Act, sayingthat 0ongress had the authority to restrict e"pression that posed (a clear andpresent danger* to the nation!s security# In a famous passage, Jolmes argued thatnot even the First Amendment would permit a person to falsely yell (FireO* in acrowded theater and create a panic that could kill or injure innocent people# 8

• Although the Schenck decision upheld a law that limited free e"pression, it alsoesta%lished a constitutional standard'the clear/and/present/danger test 'fordetermining when government could legally do so# $o meet the test, thegovernment has to clearly demonstrate that spoken or written e"pression presentsa clear and present danger %efore it can prohi%it the e"pression# 1$he use of a(test* to judge the limits of government!s authority is a common practice of theSupreme 0ourt#3

• In the early .8-s, the 0ourt applied the clear/and/present/danger test inupholding the convictions of eleven mem%ers of the #S# 0ommunist Party who had%een prosecuted under a federal law 1the Smith Act of .H-3 that made it illegal toadvocate the forceful overthrow of the #S# government# C $he 0ourt concludedthat (the gravity of the evil5 E justi7es such invasion of free speech as necessaryto avoid the danger#*

• By the late .8-s, fear of internal communist su%version was su%siding, and theSupreme 0ourt changed its position# > @ver since, it has held that national securitymust %e truly endangered %efore government can lawfully prohi%it citi)ens fromspeaking out# Because the spoken word does not pose that kind of threat,Americans are free to say what!s on their minds when it comes to polities# 9ver thepast si" decades, which includes the ietnam and Ira& wars, not a single individualhas %een convicted solely for critici)ing the government!s war policies# 1Somedissenters have %een found guilty on other grounds, such as inciting a riot orassaulting a police o+cer#3

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$he . > @spionage Act made it a crime to distri%ute antiwar leaNets that could harmthe nation!s e4orts in ;orld ;ar I# $he Supreme 0ourt upheld the law %ut used it as the%asis for esta%lishing a constitutional test'the clear/and/present/danger test'for

judging how far the government can lawfully go in restricting free e"pression#• In addition to cur%ing the federal government!s attempts to limit free speech, the

Supreme 0ourt has moved to protect speech from actions %y the states# A de7ningcase in this respect is 2randenburg v. $hio 1 .C.3# In a speech at a Qu Qlu" Qlanrally, 0larence Branden%urg said that (revenge* might have to %e taken if thenational government (continues to suppress the white 0aucasian race#* Je wasconvicted under an 9hio law, %ut the Supreme 0ourt overturned the conviction,saying a state cannot prohi%it speech that advocates the unlawful use of forceunless it meets a two/part test: 7rst, the speech must %e (directed at inciting orproducing imminent lawless action* and, second, it must %e (likely to produce suchaction#* $his test'the likelihood of imminent la0less action 'is an imposing%arrier to any government attempt to restrict speech# It is e"tremely rare for wordsalone to lead others to engage in rioting or other forms of lawless action#





em%ers of the ;est%oro Baptist 0hurch picket the funeral of an American killed in theiddle @ast# Kespite the horri7c nature of their signs and slogans, which they have

displayed at numerous military funerals, the Supreme 0ourt has ruled that their actionsare protected %y the First Amendment#Page

• In general, the Supreme 0ourt has held that government regulation ofthe content of a message is unconstitutional# In the Nag/%urning case, for e"ample,

$e"as was regulating the content of the message'contempt for the Nag and theprinciples it represents# $e"as could not have %een regulating the act itself, for the

$e"as government!s own method of disposing of worn/out Nags is to %urn them#Should Flag Burning Be a 0rime<

• Flag burning as a form of political protest has been an issue ever since the

Supreme 1ourt in 4565 held that it is a form of expression protected b" the First &mendment. Since then, 1ongress has tried unsuccessfull" to initiate aconstitutional amendment that would make it a crime to burn the &merican 7ag asa form of protest. 8ould "ou support such an amendment9 $r do "ou believe thatthe First &mendment%s guarantee of free expression takes priorit"9

Page 2Free Assem%ly

• In a key case involving freedom of assem%ly, the #S# Supreme 0ourt in .>>upheld a lower/court ruling against local ordinances of Skokie, Illinois, that had%een invoked to prevent a parade there %y the American Da)i Party# 2H Skokie had alarge ewish population, including survivors of Da)i Germany!s concentration



camps# $he Supreme 0ourt held that the right of free assem%ly takes precedenceover the mere possibilit" that the e"ercise of that right might have undesira%leconse&uences# Before government can lawfully prevent a speech or rally, it mustdemonstrate that the event will likely cause harm and also must demonstrate thatit lacks an alternative way 1such as assigning police o+cers to control the crowd3to prevent the harm from happening#

• $he Supreme 0ourt has recogni)ed that freedoms of speech and assem%ly mayconNict with the routines of daily life# Accordingly, individuals do not have the rightto hold a pu%lic rally at a %usy intersection during rush hour, nor do they have theright to immediate access to a pu%lic auditorium or the right to turn up the volumeon loudspeakers to the point where they can %e heard miles away# $he 0ourt allowspu%lic o+cials to regulate the time, place, and conditions of pu%lic assem%ly,provided the regulations are reasona%le and are applied fairly to all groups,whatever their issue# 28

Press Freedom and Mi%el Maw• Freedom of the press also receives strong judicial protection# In +ew ork :imes

1o. v. United States 1 .> 3, the 0ourt ruled that the :imes !s pu%lication of the(Pentagon Papers* 1secret government documents revealing that o+cials haddeceived the pu%lic a%out aspects of the ietnam ;ar3 could not %e %locked %y thegovernment, which claimed that pu%lication would harm the war e4ort# $hedocuments had %een o%tained illegally %y antiwar activists, who then gave them tothe :imes. $he 0ourt ruled that (any system of prior restraints* on the press isunconstitutional unless the government can provide a compelling argument for therestriction# 2C

• $he unaccepta%ility of prior restraint 'government prohi%ition of speech orpu%lication %efore it occurs'is %asic to the current doctrine of free e"pression# $heSupreme 0ourt has said that attempts %y government to prevent e"pressioncarries (a heavy presumption5 against its constitutionality#* 2> Dews organi)ationsare legally responsi%le after the fact for what they report 1for e"ample, they can %esued %y an individual whose reputation is wrongly damaged %y their words3, %utgovernment ordinarily cannot prevent a news organi)ation from reporting what itwants# 9ne e"ception is wartime reporting? in some circumstances, thegovernment can censor news reports that contain information that mightcompromise a military operation or risk the lives of American troops#

Page • $he constitutional right of free e"pression is not a legal license to avoid

responsi%ility for the conse&uences of what is said or written# If false informationharmful to a person!s reputation is pu%lished 1 libel 3 or spoken 1 slander 3, theinjured party can sue for damages# Devertheless, slander and li%el laws in the

nited States are %ased on the assumption that society has an interest inencouraging news organi)ations and citi)ens to e"press themselves freely#Accordingly, pu%lic o+cials can %e critici)ed nearly at will without fear that thewriter or speaker will have to pay them damages for slander or li%el# 1$he courtsare less protective of the writer or speaker when allegations are made a%out aprivate citi)en# ;hat is said a%out private individuals is considered to %e less %asicto the democratic process than what is said a%out pu%lic o+cials#3

• $he Supreme 0ourt has held that factually accurate statements, no matter howdamaging they might %e to a pu%lic o+cial!s career or reputation, are a protectedform of e"pression# 2 @ven false statements enjoy considera%le legal protection#In +ew ork :imes 1o. v. Sullivan 1 .CH3, the Supreme 0ourt overruled an Ala%amastate court that had found the +ew ork :imes guilty of li%el for pu%lishing an



advertisement that claimed Ala%ama o+cials had mistreated student civil rightsactivists# Although only some of the allegations were true, the Supreme 0ourt%acked the :imes, saying that li%el of a pu%lic o+cial re&uires proof of actualmalice, which was de7ned as a knowing or reckless disregard for the truth# 2. It isvery di+cult to prove that a news outlet recklessly or deli%erately pu%lished a falseaccusation# In fact, no federal o+cial has won a li%el judgment against a newsorgani)ation in the 7ve decades since the Sullivan ruling#

• LAlthough the Supreme 0ourt has categorically e"cluded child pornography fromFirst Amendment protection, it has struggled otherwise to develop a legal test fordetermining whether se"ual material is o%scene# It has said that such materialmust %e of a (particularly o4ensive type* and must %e perceived as such %y a(reasona%le person,* %ut in practice the 0ourt has had trou%le applying thatstandard, or any other, in determining the se"ually e"plicit material that adults arenot allowed to produce, see, or possess#

Freedom of Religion• Free religious e"pression is the forerunner of free political e"pression, at least

within the @nglish tradition of limited government# @ngland!s Glorious, or Bloodless,=evolution of C . resulted in the Act of $oleration, which gave mem%ers ofProtestant sects the right to worship freely and pu%licly# $he First AmendmentreNects this tradition? it protects religious freedom, as well as political e"pression#

Page H• In regard to religion, the First Amendment reads: (0ongress shall make no law

respecting an esta%lishment of religion, or prohi%iting the free e"ercise thereof#* Itwill %e noted that this statement contains two clauses, one referring to the(esta%lishment of religion* 1the esta%lishment clause3 and one referring to the(free e"ercise* of religion 1the free/e"ercise clause3# @ach clause has %een thesu%ject of Supreme 0ourt rulings#

$he @sta%lishment 0lause• $he establishment clause has %een interpreted %y the courts to mean that

government may not favor one religion over another or support religion over noreligion# 1$his position contrasts with that of a country such as @ngland, whereAnglicanism is the o+cial, or (esta%lished,* state religion, though no religion isprohi%ited#3

• $o this end, the 0ourt has largely prohi%ited religious teachings and o%servances inpu%lic schools# A leading case was ;ngel v. <itale 1 .C23, which held that theesta%lishment clause prohi%its the reciting of prayers in pu%lic schools# - A yearlater, the 0ourt struck down Bi%le readings in pu%lic schools# @4orts to %ringreligion into the schools in less direct ways have also %een invalidated# Fore"ample, an Ala%ama law attempted to circumvent the prayer ruling %y permittingpu%lic schools to set aside one minute each day for silent prayer or meditation# In

. 8, the 0ourt declared the law unconstitutional, ruling that (government mustpursue a course of complete neutrality toward religion#* 2

• Because children are impressiona%le, the Supreme 0ourt has sought to keepreligious messages out of pu%lic schools, %ut has %een less strict a%out othervenues# 0ongress and state legislatures, for e"ample, open their sessions with aprayer, which the 0ourt accepts as long/standing traditions# $he 0ourt rea+rmedthat rule in 2- H, upholding a Dew 6ork town!s practice of opening its town %oardmeetings with a prayer# $he 0ourt said such prayer is permissi%le as long as it doesnot discriminate against minority religions and does not re&uire those at themeeting to join in the prayer#





$he First Amendment!s protection of free e"pression includes religious freedom, whichhas led the courts to hold that government cannot in most instances promote or interferewith religious practices#Page C

• $he Supreme 0ourt!s most signi7cant departure from its wall/of/ separationdoctrine came in a 2--2 decision 1 ?elman v. Simmons@/arris 3, which upheld an9hio law that allows students in 0leveland!s failing pu%lic schools to receive a ta"/supported voucher to attend a private or religious school# @ven though .- percentof the vouchers were %eing used to attend religious schools, the 0ourt!s majorityconcluded that the program did not violate the esta%lishment clause %ecausestudents had a choice %etween secular and religious education# Four mem%ers ofthe 0ourt voted against the ruling# ustice ohn Paul Stevens said the ruling went%eyond accommodation and had in e4ect removed a (%rick from the wall that wasonce designed to separate religion from government#*

$he Free/@"ercise 0lause• $he First and Fourteenth Amendments also prohi%it government interference with

the free e"ercise of religion# $he free/e ercise clause has %een interpreted tomean that Americans are free to hold any religious %elief of their choosing#Americans are not always free, however, to act on their %elief# $he Supreme 0ourthas allowed government interference when the e"ercise of religious %elief conNictswith otherwise valid law# An e"ample is court/ordered medical care for childrenwith life/threatening illnesses whose parents have denied them treatment onreligious grounds#

• In a potentially far/reaching free/e"ercise decision 1 2urwell v. /obb" =obb" Stores 3,the Supreme 0ourt in 2- H held that (closely held* companies 1those with only afew owners3 are not re&uired, if the owners o%ject on religious grounds, to includecontraceptives in their employees5 health insurance coverage# $he case stemmedfrom the 2- - health care reform act, which re&uires companies that provideemployee health insurance to include contraceptives# $he 0ourt!s majority said there&uirement violates the owners5 free/e"ercise rights if the use of contraceptivescontradicts their religious %eliefs# In a strongly worded dissent, ustice =uth BaderGins%urg critici)ed the majority!s opinion as a radical rewriting of corporationrights, saying it opened the door for %usiness 7rms to challenge numerous otherlaws on religious grounds# .

Page >@sta%lishment or Free @"ercise<

• :he Supreme 1ourt ruled in 456A that creationism !the biblical account of how theworld was created# cannot be taught in public school science courses. :he 1ourtheld that creationism is a religious doctrine rather than a scientiBc theor" and that teaching it as an alternative to evolutionar" theor" is a violation of the First

&mendment%s establishment clause. $pponents of the ruling claim that it violatesthe First &mendment%s free@exercise clause because some students are forced tostud" a version of creationCthe theor" of evolutionCthat con7icts with theirreligious beliefs. /ow would "ou have ruled in this case9 8hat argument would

"ou make to support "our position9



• In some instances, the free e"ercise of religion clashes with the prohi%ition on theesta%lishment of religion, and the Supreme 0ourt is forced to choose %etweenthem# In . >, for e"ample, the 0ourt overturned a Mouisiana law that re&uiredcreationism 1the Bi%le!s account of how God created the world in seven days3 to %etaught along with the theory of evolution in pu%lic school science courses# $he0ourt concluded that creationism is a religious doctrine, not a scienti7c theory, andthat its inclusion in pu%lic school curricula violates the esta%lishment clause %ypromoting a religious %elief# H- $o some, this ruling constituted a violation of thefree/e"ercise clause %ecause it forces students who %elieve in creationism to studya version of creation'evolution'that conNicts with their religious %eliefs#

The Right to Bear Arms• $he Second Amendment to the 0onstitution says: (A well regulated ilitia, %eing

necessary to the security of a free State, the right of the people to keep and %earArms shall not %e infringed#* $he amendment is widely understood to prevent thefederal government from a%olishing state militias 1such as Dational Guard units3,%ut there has %een disagreement over whether the amendment also givesindividuals the right to possess weapons outside their use in military service#

• =emarka%ly, more than two centuries passed %efore the Supreme 0ourt s&uarelyaddressed the issue of how the Second Amendment is to %e interpreted# $hedecision came in District of 1olumbia v. /eller 12-- 3# In its ruling, the 0ourt saidthat (the Second Amendment protects an individual right to possess a 7rearmunconnected with service in a militia, and to use that arm for traditionally lawfulpurposes, such as self/defense within the home#* $he ruling struck down a Kistrictof 0olum%ia law that had %anned the possession of handguns %ut not riNes orshotguns within the district!s %oundaries# ;riting for the 8/H majority, usticeAntonin Scalia said that the justices were (aware of the pro%lem of handgunviolence in this country#* But Scalia concluded: ($he enshrinement of constitutionalrights necessarily takes certain policy choices o4 the ta%le# $hese include thea%solute prohi%ition of handguns held and used for self/defense in the home#* H Ina sharply worded dissent, ustice ohn Paul Stevens said the majority had devised aruling that 7t its partisan agenda rather than what the framers intended# Stevensdeclared: (;hen each word in the te"t is given full e4ect, the Amendment is mostnaturally read to secure to the people a right to use and possess arms inconjunction with service in a well/regulated militia# So far as it appears, no morethan that was contemplated %y its drafters or is encompassed within its terms#*

Page • $he Kistrict of 0olum%ia is federal territory, so the /eller decision was %inding only

on the federal government# Jowever, in a 2- - decision, cDonald v. 1hicago, theSupreme 0ourt through selective incorporation applied the same standard to stateand local governments in striking down a 0hicago ordinance that %anned handgunpossession# H2 In its /eller and cDonald decisions, the 0ourt did not rule out all gunrestrictions, such as a %an on gun ownership %y former felons# Jowever, the 0ourtdid not list all of the allowa%le restrictions, leaving the issue to %e decided in futurecases#

The Right of Privac• ntil the .C-s, Americans5 constitutional rights were con7ned largely to those

listed in the Bill of =ights# $his situation prevailed despite the Dinth Amendment,which reads, ($he enumeration of the 0onstitution, of certain rights, shall not %econstrued to deny or disparage others retained %y the people#* In .C8, however,the Supreme 0ourt added to the list of individual rights, declaring that Americanshave (a right of privacy#* $his judgment derived from the case of *riswold v.



1onnecticut, which challenged a state law prohi%iting the use of condoms andother %irth control devices, even %y married couples# $he Supreme 0ourt struckdown the law, concluding that a state has no %usiness dictating a married couple!smethod of %irth control# =ather than invoking the Dinth Amendment, the 0ourt!smajority reasoned that the freedoms in the Bill of =ights imply an underlying rightof privac . $he 0ourt held that individuals have a ()one of personalT privacy*that government cannot lawfully invade# H

Page .•

Although the right of privacy has not %een applied %roadly %y the Supreme 0ourt,it has %een invoked in two major areas'a woman!s right to choose an a%ortion andconsensual relations among same/se" adults#

A%ortion• $he right of privacy was the %asis for the Supreme 0ourt!s ruling in 0oe v.

8ade 1 .> 3, which gave women full freedom to choose a%ortion during the 7rstthree months of pregnancy# In overturning a $e"as law %anning a%ortion e"cept tosave the life of the mother, the 0ourt said that the right of privacy is (%roadenough to encompass a woman!s decision whether or not to terminate herpregnancy#* HH

• $he 0oe decision was met with praise %y some Americans and condemnation %yothers, provoking a still/continuing de%ate# Americans are sharply divided over thea%ortion issue and have %een throughout the nearly four decades since 0oe 1seethe (Party Polari)ation*%o"3#

Gay rights proponents won a civil li%erties lawsuit when the Supreme 0ourt in 2--overturned a state %an on se"ual relations among consenting adults of the same se"#Page 2-Political Thin1ing in "on2ict



Pro/!ife vs. Pro/"hoice• Although party polari)ation in the nited States has risen dramatically since the

. -s, some issues predate this development and have contri%uted to it# A%ortionis such an issue# It has divided Americans from the day that the Supreme 0ourtsaid in 0oe v. 8ade 1 .> 3 that a woman has a constitutional right to choosea%ortion# At 7rst, =epu%licans and Kemocrats di4ered only slightly in how they sawthe issue %ut the gap has widened to the point where they are far apart# Some=epu%lican voters and =epu%lican/ aligned groups 1such as the 0hristian 0oalitionof America3 regard opposition to a%ortion as a (litmus test* for political candidatesand judicial nominees# $hey refuse to support anyone who upholds a woman!s rightto choose# Some Kemocratic voters and Kemocrat/aligned groups 1such as @mily!sMist3 apply the opposite test in determining whom they will support# Since 0oe ,every =epu%lican national party platform has e"pressed opposition to a%ortion# Inthe same period, every Kemocratic national party platform has had a pro/choiceplank# $he partisan divide can also %e seen in where self/identi7ed Kemocratic and=epu%lican voters stand on the issue, as the following graph shows#

Source Pew =esearch 0enter for the People and the Press, 2- #• )* Ko you think there is a (middle ground* that could %ring =epu%licans and

Kemocrats together on the a%ortion issue< 9r is the moral and political divide overthe issue so great that no compromise is possi%le 9

Page 2• After the 0oe ruling, anti/a%ortion activists sought a constitutional amendment that

would %an a%ortion, %ut failed in that e4ort, prompting them to pursuealternatives# $hey persuaded the issouri legislature to pass a law that prohi%iteda%ortions from %eing performed in the state!s pu%licly funded medical facilities, apolicy that the Supreme 0ourt upheld in 8ebster v. 0eproductive /ealthServices 1 . .3# H8 $hen in 3lanned 3arenthood v. 1ase" 1 ..23, the 0ourt upheld aPennsylvania law that re&uires a minor to have parental or judicial consent %efore



o%taining an a%ortion# Any such restriction, the 0ourt said, is constitutional as longas it does not impose an (undue %urden* on the woman# HC

• In *on>ales v. 1arhart 12-->3, the Supreme 0ourt for the 7rst time upheld a %an onthe use of a particular type of a%ortion# At issue was the federal Partial/BirthA%ortion Ban Act, passed %y 0ongress in 2-- # $he law provides for a 7ne andprison term for physicians who perform an a%ortion when the mother is giving %irtheven if her life or health is in danger# ;riting for the 8/H majority, ustice AnthonyQennedy said that the federal act did not place an (undue %urden* on women# Inher dissenting opinion, ustice =uth Bader Gins%urg, the lone woman on the 0ourt,called the decision (alarming,* arguing that it put women!s lives and health atrisk# H>

0onsensual Se"ual =elations among Same/Se" Adults• Although the Supreme 0ourt!s .C8 *riswold ruling on contraceptive use was

widely said to have taken (government out of people!s %edrooms,* an e"ceptionremained# @very state prohi%ited se"ual relations %etween consenting adults of thesame se"# 9ver the ne"t two decades, many states eliminated this prohi%ition andothers stopped enforcing it# Devertheless, in a . C Georgia case, 2owers v./ardwick, the Supreme 0ourt held that the right of privacy did not e"tend toconsensual se"ual relations among adults of the same se"# H

• In 2-- , the 0ourt reversed itself and in the process struck down the sodomy lawsof the thirteen states that still had them# In =awrence v. :exas, the 0ourt in a C/vote concluded that $e"as!s sodomy law violated (the right of privacy* implied %ythe grant of li%erty in the Fourteenth Amendment!s due process clause# $he 0ourtsaid: ($he petitioners are entitled to respect for their private lives# $he Statecannot demean their e"istence or control their destiny %y making their privatese"ual conduct a crime#* H. $he decision was hailed %y gay and les%ian rightsgroups %ut condemned %y some religious groups, who said it opened the door tosame/se" marriage 1see 0hapter 83#

Rights of Persons Accused of "rimes• Kue process refers to legal protections that have %een esta%lished to preserve the

rights of individuals# $he most signi7cant of these protections is procedural dueprocess3 the term refers primarily to procedures that authorities must follow%efore a person can lawfully %e punished for an o4ense# Do system of justice isfoolproof# @ven in the most careful systems, innocent people have %een wronglyaccused, convicted, and punished with imprisonment or death# But the scrupulousapplication of procedural safeguards, such as a defendant!s right to legal counsel,greatly increases the likelihood of a fair trial# ($he history of li%erty has largely%een the history of the o%servance of procedural guarantees,* said ustice Feli"Frankfurter in c+abb v. United States 1 .H 3# 8-

• $he #S# 0onstitution o4ers procedural safeguards designed to protect a personfrom wrongful arrest, conviction, and punishment# $he Fifth and FourteenthAmendments provide generally that no person can %e deprived of life, li%erty, orproperty without due process of law# Speci7c procedural protections for theaccused are listed in the Fourth, Fifth, Si"th, and @ighth Amendments# 8 1See $a%leH/2#3

ta%le H/2 BI!! F RI&#TS* A S+!+"T+- !IST F -'+ PR "+SS PR T+"TI $SFourth Amendment

• Search and sei4ure* 6ou areprotected from unreasona%lesearches and sei)ures, althoughyou forfeit that right if you

Si th Amendment• "ounsel* 6ou have a right to %e

represented %y an attorney and candemand to speak 7rst with an attorney%efore responding to &uestions from law



knowingly waive it#• Arrest* 6ou are protected from

arrest unless authorities havepro%a%le cause to %elieve that youhave committed a crime#

enforcement o+cials#• Prompt and reasonable

proceedings* 6ou have a right to %earraigned promptly, to %e informed of thecharges, to confront witnesses, and tohave a speedy and open trial %y animpartial jury#

Fifth Amendment• Self/incrimination* 6ou are

protected against self/incrimination, which means thatyou have the right to remain silentand to %e protected againstcoercion %y law enforcemento+cials#

• -ouble 5eopard * 6ou cannot %etried twice for the same crime ifthe 7rst trial results in a verdict of

innocence#• -ue process* 6ou cannot %edeprived of life, li%erty, or propertywithout proper legal proceedings#

+ighth Amendment• Bail* 6ou are protected against e"cessive

%ail or 7nes#• "ruel and unusual punishment* 6ou

are protected from cruel and unusualpunishment, although this provision doesnot protect you from the death penalty orfrom a long prison term for a minoro4ense#

Suspicion Phase: nreasona%le Search and Sei)ure• In >CC, Parliamentary leader ;illiam Pitt forcefully e"pressed a principle of

@nglish common law: ($he poorest man may, in his cottage, %id de7ance to all theforces of the 0rown# It may %e frail? its roof may shake? the wind may %low throughit? the rain may enter? %ut the Qing of @ngland may not enter? all his force daresnot cross the threshold#* 82 In the period immediately preceding the American=evolution, few things provoked more anger among the colonists than Britain!s

disregard for the sanctity of the home# British soldiers regularly forced their wayinto colonists5 houses, looking for documents or other evidence of anti/Britishactivity#

• $he Fourth Amendment was included in the Bill of =ights to prohi%it such actions%y the #S# government# $he Fourth Amendment reads: ($he right of the people to%e secure in their persons, houses, papers, and e4ects, against unreasona%lesearches and sei)ures, shall not %e violated, and no ;arrants shall issue, %ut uponpro%a%le cause, supported %y 9ath or a+rmation, and particularly descri%ing theplace to %e searched, and the persons or things to %e sei)ed#*

• $he Fourth Amendment protects individuals against ar%itrary police action#Although a person caught in the act of a crime can %e arrested 1sei)ed3 and

searched for weapons and incriminating evidence, the police ordinarily cannotsearch an individual merely on the %asis of suspicion# In such instances they haveto convince a judge that they have (pro%a%le cause* 1su+cient evidence3 to%elieve that a suspect is engaged in criminal activity# If the judge concludes thatthe evidence is strong enough, the police will %e granted a search warrant# $he0ourt has also held that police must have a search warrant to investigate a suspectusing modern technology, such as a listening or thermal/imaging device# 8

Page 2• In a unanimous 2- H decision, the Supreme 0ourt delivered what many legal

e"perts consider a landmark ruling# At issue were two cases, one from 0alifornia



and the other from assachusetts, in which police without a warrant searched asuspect!s cell phone after an arrest# In each case, they found informationimplicating the suspect# In 0ile" v. 1alifornia and United States v. 8urie, the 0ourtnoted that, although police upon making an arrest can normally search a suspectand sei)e relevant physical items 1such as weapons or drugs3, cell phones andsimilar electronic devices are di4erent in kind in that they contain large amounts of personal information# $o e&uate such devices to physical o%jects, the 0ourt argued,(is like saying a ride on horse%ack is materially indistinguisha%le from a Night tothe moon# Both are ways of getting from point A to point B, %ut little else justi7eslumping them together#* $he 0ourt said that police normally cannot tear apart asuspect!s home without a search warrant and concluded that the search of a cellphone similarly re&uires a warrant, e"cept in e"treme circumstances where policereasona%ly %elieve the phone contains information that could prevent a seriousimminent crime, such as a terrorist attack# $he 0ourt noted that (a cell phonesearch would typically e"pose to the government far more than the moste"haustive search of a house#* $he 0ourt acknowledged that its ruling would makethe work of police more di+cult %ut concluded that the protection of Americans5constitutional rights took precedence# (;e cannot deny that our decision today willhave an impact on the a%ility of law enforcement to com%at crime,* said the 0ourt#(Privacy comes at a cost#* 8H

Page 2H• Jowever, protection against unreasona%le search and sei)ure does not prohi%it

police from re&uiring a photo and 7ngerprints of a suspect or even, as the Supreme0ourt ruled in 2- , of taking a cheek swa% of the suspect!s KDA# Although suchinformation is then entered into a national data%ase, even if the suspect is foundinnocent, the 0ourt argued that such information results from (a legitimate%ooking procedure that is reasona%le under the Fourth Amendment#* 88

• $he Supreme 0ourt allows warrantless searches in some circumstances# Fore"ample, the 0ourt has generally given school administrators wide latitude tosearch students for drugs, weapons, and other dangerous items, on the groundsthat they %ear responsi%ility for the safety of other students# 8C $he 0ourt has alsoheld, for e"ample, that police road%locks to check drivers for signs of into"icationare legal as long as the action is systematic and not ar%itrary 1for e"ample,stopping only young drivers would %e unconstitutional, whereas stopping alldrivers is accepta%le3# $he 0ourt justi7ed this decision %y saying that road%locksserve an important highway safety o%jective# 8> Jowever, the 0ourt does not allowpolice road%locks to check for drugs# In (ndianapolis v. ;dmund 12-- 3, the 0ourtheld that narcotics road%locks serve a general law enforcement purpose ratherthan one speci7c to highway safety and therefore violate the Fourth Amendment!sre&uirement that police have suspicion of wrongdoing %efore they can search anindividual!s auto# 8



Few Supreme 0ourt decisions have had a more direct impact than the iranda ruling,which re&uires police to read suspects their rights %efore they can %e interrogated# $he

iranda warnings include the Fifth Amendment right to remain silent and the Si"thAmendment right to have an attorney#Page 28Arrest Phase: Protection against Self/Incrimination

• $he Fifth Amendment says, in part, that an individual cannot (%e compelled in anycriminal case to %e a witness against himself#* $his provision is designed to protectindividuals from the age/old practice of coerced confession# $rickery, torture, andthe threat of an e"tra/long prison sentence can lead people to confess to acts theydid not commit#

• At the time of arrest, police cannot legally %egin their interrogation until thesuspect has %een warned that his or her words can %e used as evidence# $hiswarning re&uirement emerged from iranda v. &ri>ona 1 .CC3, which centered on@rnesto iranda!s confession to kidnapping and rape during police &uestioning#

$he Supreme 0ourt overturned his conviction on the grounds that police had notinformed him of his right to remain silent and to have legal assistance# $he 0ourtreasoned that suspects have a right to know their rights# $he 0ourt!s ruling led tothe formulation of the ( iranda warning* that police are now re&uired to read tosuspects: (6ou have the right to remain silentE # Anything you say can and will %eused against you in a court of lawE # 6ou have the right to an attorney#* 1 irandawas su%se&uently retried and convicted on the %asis of evidence other than hisconfession#3

• $he iranda warning has served to protect suspects, usually those who are poorand uneducated, who are unaware of their rights at the time of arrest# In a 2---case, Dickerson v. United States, the Supreme 0ourt rea+rmedthe iranda decision, saying that it was an esta%lished (constitutional rule* that0ongress could not a%olish %y ordinary legislation# 8. $he 0ourt furtherstrengthened the iranda precedent in issouri v. Siebert 12--H3# $his ruling camein response to a police strategy of &uestioning suspects %efore informing them oftheir iranda rights and then &uestioning them a second time often with the use of a tape or video recorder# In such instances, suspects who admitted wrongdoing inthe 7rst round of &uestioning often did so also in the second round# $he 0ourt



concluded that the police strategy was intended (to undermine the irandawarnings* and was a violation of suspects5 rights# C-

Page 2C• 9n the other hand, as a result of a 2- - Supreme 0ourt decision, police can

&uestion suspects who are informed of their rights and then fail to ask for anattorney or fail to say they want to remain silent# C $he decision was a reversal ofthe 0ourt!s earlier position, which held that suspects must (knowingly andintelligently waive* their rights %efore they can %e &uestioned#

$rial Phase: $he =ight to a Fair $rial• $he right to a fair trial is %asic to any reasona%le notion of justice# If the trial

process is ar%itrary or %iased against the defendant, justice is denied# It issometimes said the American justice system is %ased on the principle that it is%etter to let one hundred guilty parties go free than to convict one innocentperson# $he system does not actually work that way# 9nce a person has %eenarrested and charged with a crime, prosecutors are determined to get a conviction#Kefendants in such instances have fair/trial guarantees that are designed toprotect them from wrongful conviction#

• Legal Counsel and Impartial Jury nder the Fifth Amendment, suspectscharged with a federal crime cannot %e tried unless indicted %y a grand jury# $hegrand jury hears the prosecution!s evidence and decides whether it is strongenough to allow the government to try the suspect# 1$his protection has not %eenincorporated into the Fourteenth Amendment# As a result, states are not re&uiredto use grand juries, although roughly half of them do so# In the rest of the states,the prosecutor usually decides whether to proceed with a trial#3

• $he Si"th Amendment provides a right to legal counsel %efore and during trial# Butwhat if a person cannot a4ord a lawyer< For most of the nation!s history, poorpeople had no choice %ut to serve as their own attorneys# In Johnson v.

?erbst 1 . 3, the Supreme 0ourt held that criminal defendants in federal casesmust %e provided a lawyer at government e"pense if they cannot a4ord one# C2 $he0ourt e"tended this re&uirement to include state cases with its ruling in *ideon v.8ainwright 1 .C 3# $his case centered on 0larence Gideon, who had %eenconvicted in a Florida court of %reaking into a pool hall# Je had asked for a lawyer,%ut the trial judge denied the re&uest, forcing Gideon to act as his own attorney# Jeappealed his conviction, and the Supreme 0ourt overturned it on grounds that hedid not have ade&uate legal counsel# C

Page 2>• 0riminal defendants also have the right to a speedy trial and to confront witnesses

against them# At the federal level and sometimes at the state level, they have aright to jury trial, which is to %e heard %y an (impartial jury#* $he 0ourt has ruledthat a jury!s impartiality can %e compromised if the prosecution stacks a jury %yrace or ethnicity# CH $here was a period in the South when %lacks accused of crimesagainst whites were tried %y all/white juries, which invaria%ly returned a guiltyverdict# $he jury!s makeup can %e an issue for other reasons as well#In 8itherspoon v. (llinois 1 .C 3, for e"ample, the Supreme 0ourt invalidatedIllinois!s policy of allowing the prosecution to challenge an unlimited num%er ofpotential jurors in capital cases# $he prosecution used the challenges to removefrom the jury anyone who showed any hesitancy a%out sentencing the defendantto death if found guilty# $o allow that practice, the 0ourt ruled, is to virtuallyguarantee (a verdict of death#* (;hatever else might %e said of capitalpunishment,* the 0ourt said, (it is at least clear that its imposition %y a hanging

jury cannot %e s&uared with the 0onstitution#* C8



• The Exclusionary Rule An issue in some trials is the admissi%ility of evidenceo%tained in violation of the defendant!s rights# $he e clusionar rule %ars the useof such evidence in some circumstances# $he rule was formulated on a limited%asis in a . H Supreme 0ourt decision and was devised to deter police fromviolating people!s rights# If police know that illegally o%tained evidence will %einadmissi%le in court, they presuma%ly will %e less inclined to o%tain it# As the0ourt wrote in 8eeks v. United States 1 . H3: ($he tendency of those who e"ecutethe criminal laws of the country to o%tain convictions %y means of unlawfulsearches and enforced confessions E should 7nd no sanction in the judgment ofthe courts#* CC

• In the .C-s, the li%eral/dominated Supreme 0ourt e"panded the e"clusionary ruleto the point where almost any illegally o%tained evidence was inadmissi%le infederal or state court# 9pponents accused the 0ourt of (coddling criminals,* andthe appointment of more conservative justices to the 0ourt led to the wateringdown of the rule#

• $he change has taken the form of e"ceptions to the e"clusionary rule# 9ne suche"ception emerged from United States v. =eon 1 . H3, where the 0ourt ruled thatevidence discovered under a faulty warrant was admissi%le %ecause the police hadacted in (good faith#* C> $he good faith e ception holds that otherwise e"cluda%leevidence can %e admitted in trial if police %elieved they were following properprocedures#

Page 2• A second instance in which tainted evidence can %e admitted is the inevitable

discover e ception. It was developed in the case of +ix v. 8illiams 1 . H3# Aneyewitness account had led police to %elieve that ;illiams had kidnapped a younggirl# Police o%tained a warrant and arrested him# ;hile %eing transported %y police,despite ver%al assurances to his lawyer that he would not %e &uestioned en route,;illiams was interrogated and told police where the girl!s %ody could %e found#;hen ;illiams appealed his conviction, the 0ourt acknowledged that his rights had%een violated %ut concluded that police had other evidence that would have ledthem to the girl!s %ody# (@"clusion of physical evidence that would have inevita%ly%een discovered adds nothing to either the integrity or fairness of a criminal trial,*the 0ourt said# C

• A third instance is the plain vie0 e ception. In a key ..C case, 8hren v. UnitedStates, the 0ourt upheld the conviction of a man stopped for a minor tra+cinfraction who had drugs sitting in plain view in the front seat of his car# C. $heruling rea+rmed an earlier decision upholding the admissi%ility of evidence foundin plain sight even when the evidence relates to an infraction other than the onefor which the individual was stopped# >-

• As some o%servers see it, the 0ourt has weakened the e"clusionary rule almost tothe point where it applies only to e"treme forms of police misconduct# Some0ourt!s rulings would support that contention# 9n the other hand, the 0ourt!srecent rulings on cell phones and tracking devices indicate it is unwilling to givepolice %road latitude in the use of modern technology, recogni)ing that it caneasily %e applied in ways that a%ridge constitutional rights#

;hat 0onstitutes ( nreasona%le Search and Sei)ure*<



• +ow that "ou%ve had the opportunit" to read about the fair@trial guarantees provided b" the U.S. 1onstitution, think back to the chapter%s opening exampleCthe case of &ntoine Jones. 3olice and F2( oEcers, acting without a warrant andusing a *3S device, tracked his car G hours a da" for nearl" a month. :heinformation the" gathered contributed to his arrest and conviction on drugcharges. (f "ou had been on the Supreme 1ourt, how would "ou have voted in thiscase9 8ould "ou have allowed the evidence to be used9 8hat arguments would

"ou have made to support "our position9Page 2.Sentencing Phase: 0ruel and nusual Punishment

• ost issues of criminal justice involve procedural due process# Jowever, adherenceto proper procedures does not necessarily produce reasona%le outcomes# $he@ighth Amendment was designed to address this issue# It prohi%its (cruel andunusual punishment* of those convicted of crime# $he Supreme 0ourt has appliedseveral tests in determining whether punishment is cruel and unusual, includingwhether it is (disproportionate to the o4ence,* violates (fundamental standards ofgood conscience and fairness,* and is (unnecessarily cruel#*

• Jowever, the Supreme 0ourt has typically let 0ongress and the state legislaturesdetermine the appropriate penalties for crime# For e"ample, the 0ourt upheld aconviction under 0alifornia!s (three strikes and you!re out* law that sent a twicepreviously convicted felon to prison for life without parole for shoplifting videotapesworth R --# >

• 9n the other hand, the Supreme 0ourt has recently employed the @ighth

Amendment to narrow the use of the death penalty# $he 0ourt recently outlawedthe death penalty for those who are mentally disa%led on grounds that itconstitutes (cruel and unusual punishment#* >2 $he 0ourt tightened that restrictionin a 2- H ruling 1 /all v. Florida 3 that invalidated Florida!s use of an IU score of C.or lower as the strict cuto4 for determining mental disa%ility in capital murdercases# Doting that IU tests have an inherent margin of error, the 0ourt said thatstates must take additional evidence into account in gauging mentalincapacity# > $he 0ourt also recently invoked the @ighth Amendment to %an thedeath penalty in cases involving juveniles and for crimes other than murder# >H In2- -, the Supreme 0ourt %roadened the %an on e"treme punishment of juvenilesto include life without parole in nonhomicide cases# $he ruling grew out of a Florida

case in which a teenager, who had previously %een convicted of ro%%ery, wassentenced to life without parole for participating in a home invasion# >8

Appeal: 9ne 0hance, sually• $he 0onstitution does not guarantee an appeal after conviction, %ut the federal

government and all states permit at least one appeal# $he Supreme 0ourt hasruled that the appeal process cannot discriminate against poor defendants# At aminimum, government must provide indigent convicts with the legal resources to7le a 7rst appeal#

Page -



J9; $J@ 8- S$A$@S KIFF@=P !ITI"A! T#I$%I$& T#R '&# " (PARIS $SIncarceration Rates

• $he #S# 0onstitution imposes some uniform re&uirements on state justice

systems# All states are re&uired, for e"ample, to provide legal counsel todefendants who cannot a4ord to hire an attorney# 9therwise, the states are free togo their own way, with the result that the state justice systems di4er markedly insome areas# Some states, for e"ample, prohi%it the death penalty, while otherstates apply it li%erally# =oughly a third of all e"ecutions in the past &uarter centuryhave taken place in $e"as alone# States also di4er su%stantially in the si)e of theirprison populations# Mouisiana has the highest incarceration rate, with C8 inmatesfor every --,--- residents# ississippi, $e"as, 9klahoma, and Ala%ama are theother states in the top 7ve# aine has the lowest incarceration rate' 8. inmatesper --,--- residents# 9n a per/capita %asis, Mouisiana imprisons more than 7vetimes as many of its residents as does aine# $he four other states in the lowest

7ve in terms of prison population are innesota, Dorth Kakota, =hode Island, andtah#



Source #S# Kepartment of ustice, 2- H#Page

• )* ;hat do many of the states with low incarceration rates have in common<• A* ost of these states are relatively aVuent and rank high on indicators of

educational attainment, which are correlated with lower crime rates# ost of thesestates also have relatively small minority/group populations# Studies have foundthat the poor and minority/group defendants are more likely than aVuent andwhite defendants to %e convicted and, when convicted, to receive a lengthiersentence#

• Prisoners who %elieve their constitutional rights have %een violated %y stateo+cials can appeal their conviction to a federal court# ;ith a few e"ceptions, theSupreme 0ourt has held that prisoners have the right to have their appeal heard infederal court unless they had (deli%erately %ypassed* the opportunity to 7rst maketheir appeal in state courts# >C

• $he main restriction on appeals is a federal law that %ars in most instances asecond federal appeal %y a state prison inmate# >> pheld %y the Supreme 0ourtin Felker v. :urpin 1 ..C3, this law is designed to prevent frivolous and multiplefederal court appeals# State prisoners had used appeals to contest even smallissues, and some inmates'particularly those on death row'had 7led appeal afterappeal# An e4ect was the clogging of the federal courts and a delay in hearingother cases# $he Supreme 0ourt has ruled that, e"cept in unusual cases, > it is fairto ask inmates to 7rst pursue their options in state courts and then to con7nethemselves to a single federal appeal#

Page 20rime, Punishment, and Police Practices

• Although the e"clusionary rule and the appeals process have %een weakened,there has not %een a return to the lower procedural standards that prevailed priorto the .C-s# ost of the key precedents esta%lished in that decade remain ine4ect, including the most important one of all: the principle that proceduralprotections guaranteed to the accused %y the Bill of =ights must %e o%served %ythe states as well as %y the federal government#

• Supreme 0ourt rulings have changed police practices# ost police departments, fore"ample, re&uire their o+cers to read suspects the iranda warning %efore&uestioning them# Devertheless, constitutional rights are applied unevenly# Ane"ample is the use of racial proBling, which is the targeting of individuals fromparticular groups, such as %lacks, Jispanics, and uslims# =esearch indicates thatsuch individuals are more likely than other Americans to %e ar%itrarily stopped,searched, and detained %y police on everything from tra+c infractions to suspicionof criminal activity# An important early study found, for e"ample, that - percent of the motorists stopped and searched %y aryland State Police on Interstate .8 wereminorities and only 2- percent were white, despite the fact that white motoristsconstituted >8 percent of all drivers and were just as likely as minority motorists toviolate the tra+c laws# >. Such 7ndings prompted federal, state, and local lawenforcement agencies to create training programs aimed at reducing the practice#Although racial pro7ling continues to %e a pro%lem, recent studies indicate itsfre&uency is declining# -

• Sentencing policies are also an issue# Being (tough on crime* is popular with somevoters, and most state legislatures during the past two decades have enactedsti4er penalties for crime while also limiting the a%ility of judges to reducesentences, even for nonviolent crime when the perpetrator has no prior criminalrecord# As a result, the num%er of federal and state prisoners has more than



dou%led since ..-# In fact, on a per/capita %asis, the nited States has the largestprison population in the world 1see Figure H/ 3# 0u%a and =ussia are the onlycountries that are even close to the nited States in terms of the percentage of itsciti)ens who are %ehind %ars#

6gure 7/8 ID0A=0@=A$I9D =A$@S, B6 09 D$=6$he nited States is the world leader interms of the num%er of people it places %ehind %ars# ore than half of the people in #S#prisons were convicted of nonviolent o4enses, such as drug use or property theft#Source International 0entre for Prison Studies, 2- H#

• As the human and 7nancial costs of keeping so many people in prison have risen,de%ate over America!s criminal justice system has intensi7ed# $he incarceration ofnonviolent drug o4enders is one such issue# #S# drug policy is at odds with those

of other ;estern countries, which rely more heavily on treatment programs thanon prisons in dealing with drug o4enders#Rights and the War on Terrorism

• In time of war, the courts have upheld government policies that would not %epermitted in peacetime# After the apanese attack on Pearl Jar%or in .H , fore"ample, President Franklin K# =oosevelt ordered the forced relocation of tens ofthousands of apanese Americans living on the ;est 0oast to detention camps inAri)ona, tah, and other inland locations# 0ongress endorsed the policy, and theSupreme 0ourt upheld it in -orematsu v. United States 1 .HH3# Another Supreme0ourt ruling during ;orld ;ar II denied a #S# citi)en arrested as a Da)icolla%orator a court trial after the government decided to try him %efore a military

tri%unal#2

After the terrorist attacks of Septem%er , 2-- , the Bushadministration invoked precedents such as these in declaring that customary legalprotections would not %e a4orded to individuals it deemed to have engaged interrorist activity#

Ketention of @nemy 0om%atants• $he Bush administration soon announced its policy for handling captured (enemy

com%atants*'individuals judged to %e engaged in, or in support of, hostile militaryactions against #S# military forces# Some of these prisoners were sent to adetention facility created at the #S# naval %ase at Guantanamo Bay on the tip of0u%a# 9thers were imprisoned in Afghanistan, Ira&, and elsewhere# =e&uests %y



lawyers and international agencies like the =ed 0ross to see the detainees weredenied or strictly limited# Some prisoners were su%ject to a%usive treatment,although the practice was denied %y #S# o+cials until photographic and otherevidence surfaced#

Page H• In 2--H, the Supreme 0ourt issued its 7rst ruling on these practices, holding that

the Guantanamo Bay detainees have the right to challenge their detention incourt# $he 0ourt reasoned that the naval %ase, though in 0u%a, is on land leased tothe nited States and therefore under the jurisdiction of #S# courts# In a second2--H case 1 /amdi v. 0umsfeld 3, the 0ourt ruled that one of the Guantanamo Baydetainees, who was a #S# citi)en %y virtue of having %een %orn in the nitedStates though he was raised in Saudi Ara%ia, had the right to %e heard in #S#courts# $he 0ourt said: (As critical as the government!s interest may %e indetaining those who actually pose an immediate threat to the national security ofthe nited States during ongoing international conNict, history and common senseteach us that an unchecked system of detention carries the potential to %ecome ameans of oppression and a%use of others who do not present that sort of threat#* H

• $wo years later, the Supreme 0ourt issued its sharpest re%uke of the Bushadministration!s detention policies# In a ruling nearly unprecedented in itschallenge to a president!s wartime authority, the 0ourt held that the detaineeswere protected %oth %y the #S# niform 0ode of ilitary ustice and %y the Geneva0onventions# At issue was the Bush administration!s use of secret military tri%unalsto try detainees# In /amdan v. 0umsfeld 12--C3, the 0ourt ruled that the tri%unalswere unlawful %ecause they did not provide even minimal protections of detainees5rights, including the right to see the evidence against them# $he 0ourt said thatthe detainees were entitled to %e tried %y a (regularly constituted court a4ordingall the judicial guarantees which are recogni)ed as indispensa%le %y civili)edpeoples#* 8

Surveillance of Suspected $errorists• After the Septem%er terrorist attacks, 0ongress passed the SA Patriot Act,

which lowered the standard for judicial approval of wiretapping when terroristactivity was at issue# $he law also allowed information from intelligencesurveillance to %e shared with criminal investigators when evidence was found ofcriminal activity unrelated to terrorism# Previously, such information could %eshared only when o%tained %y the stricter standards that apply to criminalinvestigations# $he new law also gave government increased authority to e"aminemedical, 7nancial, and student records and allowed the government in somesituations to secretly search homes and o+ces 1so/called (sneak and peek*searches3#

Page 8• $he Bush administration promised to act with restraint in its e"ercise of the new

powers, and congressional oversight committees were generally satis7ed with itsactions until :he +ew ork :imes revealed in late 2--8 that President Bush without

judicial approval had secretly authori)ed the Dational Security Agency 1DSA3 towiretap international phone calls and e/mail messages originating in the nitedStates# Such wiretaps are e"pressly prohi%ited %y the Foreign IntelligenceSurveillance Act 1FISA3 of .> # Bush rejected allegations that he had %roken thelaw, saying that he had acted legally under his wartime powers as commander/in/chief and under authority implicitly granted him %y the Patriot Act#

• ;hen Barack 9%ama %ecame president, o%servers e"pected him to disclose thescope of the DSA!s warrantless surveillance activities# Instead the 9%ama



administration declared that release of the information (would cause e"ceptionallygrave harm to national security#* In 2- @dward Snowden, an DSA contractor,leaked documents to the press that showed that the DSA surveillance program wasfar more e"tensive than the government had previously indicated# $he DSA hadgathered data on nearly every call made %y Americans and had eavesdropped onthe calls of some foreign leaders, including German chancellor Angela erkel#=epu%lican =and Paul of Qentucky and Kemocrat =on ;yden of 9regon wereamong the mem%ers of 0ongress calling for a halt to the program# Politicalpressure forced 9%ama to alter the program, including storing the data withcommunication companies rather than with the DSA in order to make it harder forDSA employees to misuse the data# At the same time, the 9%ama administrationinsisted that the domestic surveillance program was lawful in that it involvedcollecting phone call records rather than actually monitoring Americans5conversations# $he records were used to detect patterns in phone tra+c that mightsuggest terrorist activity, at which point a warrant had to %e o%tained from afederal judge %efore o+cials were allowed to monitor speci7c conversations#Mower/court rulings on the constitutionality of the program have %een inconsistent,raising the possi%ility that the Supreme 0ourt might take up the issue in the nearfuture#

Seen %y some as a traitor and %y others as a hero, @dward Snowden was an DSAcontractor with access to classi7ed documents a%out the DSA!s surveillance activities,which he disclosed to the press# $he release of the documents led to changes in theDSA!s program %ut also forced Snowden to seek asylum outside the country# Je wascharged %y the #S# government with the crime of revealing classi7ed information#

The "ourts and a Free Societ





• 0ivil li%erties are not a%solute %ut must %e judged in the conte"t of otherconsiderations 1such as national security or pu%lic safety3 and against one anotherwhen di4erent rights conNict# $he judicial %ranch of government, particularly theSupreme 0ourt, has taken on much of the responsi%ility for protecting andinterpreting individual rights# $he 0ourt!s positions have changed with time andconditions, %ut the 0ourt is usually more protective of civil li%erties than areelected o+cials or popular majorities#

Page Qey $erms

• Bill of =ights 1 p. 4H 3• civil li%erties 1 p. 4H4 3•

clear/and/present/danger test 1 p. 4H6 3• due process clause 1of the Fourteenth Amendment3 1 p. 4HI 3• esta%lishment clause 1 p. 44G 3• e"clusionary rule 1 p. 4 A 3• freedom of e"pression 1 p. 4H 3• free/e"ercise clause 1 p. 44 3• good faith e"ception 1 p. 4 6 3• imminent lawless action test 1 p. 44H 3• inevita%le discovery e"ception 1 p. 4 6 3• Memon test 1 p. 44K 3• li%el 1 p. 44I 3•

plain view e"ception 1 p. 4 6 3• prior restraint 1 p. 44 3• procedural due process 1 p. 4 3• right of privacy 1 p. 445 3• selective incorporation 1 p. 4HG 3• slander 1 p. 44I 3• sym%olic speech 1 p. 44H 3

Applying the @lements of 0ritical $hinking• "onceptuali4ing* Kistinguish %etween the esta%lishment clause and the free/

e"ercise clause of the First Amendment# $o which one does the =emon test apply,and what are the components of that test<

•

S nthesi4ing* Assume that an individual has %een arrested and is eventually%rought to trial# Identify the procedural due process rights that the individual hasat each step in the legal process# Jow might the e"clusionary rule a4ect theoutcome<

• Anal 4ing* ;hat is the process of selective incorporation, and why is it importantto the rights Americans have today<

@"tra 0redit• A Boo1 Worth Reading* Anthony Mewis, *ideon%s :rumpet /ow $ne an, a 3oor

3risoner, :ook /is 1ase to the Supreme 1ourtCand 1hanged the =aw of the UnitedStates. Dew 6ork: intage, .CH# ;ritten %y a two/time Pulit)er Pri)e winner, this



%est/selling %ook recounts the story of how ames @arl Gideon got the Supreme0ourt to accept his case, which led to a constitutional ruling re&uiring governmentto provide the poor with legal counsel#

Page .• A Website Worth :isiting* 000.feppro5ect.org $he Free @"pression Policy

Project aggregates news and information on a wide variety of contemporary FirstAmendmentWrelated issues#

ParticipateO•

Although their right of free e"pression is protected %y law, Americans often choosenot to e"ercise this right for fear of social pressure or o+cial reprisal# 6etconstitutional rights tend to wither when people fail to e"ercise them# $he failure of citi)ens to speak their minds, Ale"is de $oc&ueville said, reduces them (to %eingnothing more than a herd of timid and industrious animals of which government isthe shepherd#* $hink of an issue that you care a%out %ut that is unpopular on yourcampus or in your community# 0onsider writing a letter e"pressing your opinion tothe editor of your college or local newspaper# 1Practical advice: Qeep the lettershort and to the point? write a lead sentence that will get readers5 attention?provide a convincing and courteous argument for your position? and %e sure to signthe letter and provide a return address so that the editor can contact you if thereare &uestions#3

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