Eighteenth Amendment—the only amendment to restrict rights—which was later overturned by the. Twenty-first Amendment public domain. If you have been reading carefully, you know that the Bill of Rights was aimed at protecting citizens from actions of the national government.
But what about actions by state governments? Does the Constitution protect us from state governments that may want to restrict speech or religious practice or deny us legal counsel when we are tried for crimes? You may remember the universal answer to nearly all political questions: That answer applies here.
It depends on what time in history we are talking about and what right we are talking about. The answer involves a story with the same theme we saw in looking at amendments concerning the right to vote—the gradual slow and sometimes painful expansion of rights.
It involves the paradox of seemingly obvious constitutional rights not being constitutionally protected. His business involved offloading goods from ships anchored in the harbor, storing them, and then helping to distribute them. It was a good business. Then the City of Baltimore undertook a public works project that greatly reduced the flow of water to the wharf and increased the sand surrounding the wharf.
The result turned a profitable wharf into a worthless waterless wharf. He then appealed the case to the federal courts because it rested on words in the United States Constitution. John Marshall was still Chief Justice when Barron v.
Baltimore reached the Supreme Court in The Bill of Rights was specifically aimed at the national government, not the state governments. The City of Baltimore was chartered by the state of Maryland , so it was an agent of a state government. So any protections in the Bill of Rights did not apply to Baltimore. Barron was stuck, both legally and literally in the sand--end of case!
Fourteenth Amendment, most of the rights in the Bill of Rights were gradually applied, or. The nation fought the Civil War, and the national government, concerned that states might deny rights to those freed from enslavement, proposed the Fourteenth Amendment.
The states quickly ratified it in , thirty years after the Barron case. What does that sound like it means to you? And the rights you have as a U. This interpretation is called the incorporation theory , meaning that the Fourteenth Amendment incorporates, or takes in, the Bill of Rights to apply to state as well as national actions. That seems pretty clear to me? Does it to you? But of course, what counts is not what we think the plain language says.
What counts is what the Supreme Court says it means. In the late s the Supreme Court began to apply first amendment rights to state actions. Did that mean that all the other rights also would be applied? In Frank Palko was fleeing the scene of a crime. Police cornered him and he killed two police officers before being captured. The state of Connecticut tried him for first degree murder, but the jury only found him guilty of second degree murder. He was sentenced to life imprisonment.
Authorities in Connecticut were not satisfied. So they tried him for murder again. This time the jury found him guilty of first degree murder, and the judge sentenced him to death. Does this sound logical to you? To let the state continue to try someone with different juries until they get a verdict they liked would seem to offend any reasonable notion of fairness.
Moreover, as we mentioned above, the Supreme Court had in earlier cases applied some parts of the Bill of Rights to state laws, for example freedom of speech. Despite all this, Palko lost in an eight to one decision! The majority decision in Palko v. If government can try someone until they get a guilty verdict or a harsh penalty, can anyone have liberty? What do you think about this? Regardless, that is what the Court said—double jeopardy protection was just not important enough to be incorporated by the Fourteenth Amendment to apply to the states.
Frank Palko was electrocuted in April of The Constitution does not always mean what it seems to say—where Frank Palko ended up. Supreme Court decided that protecting the accused from double jeopardy in state legal. In in Benton v.
Maryland , the Supreme Court overturned the Palko precedent. It decided that double jeopardy was indeed important and used the Fourteenth Amendment to apply it to state criminal proceedings. That did not help Frank Palko. Despite what you and I may have seen as the plain wording and meaning in the Fourteenth Amendment, the Supreme Court has never had a majority ruling that all of the Bill of Rights is incorporated, or brought in, to apply to the states.
Some individual justices have made that argument, but never a majority in a ruling. However, gradually over time, case by case, right by right, the Court has applied most of the rights under the Bill of Rights to the states. Over history the Court has applied all the rights in the first ten amendments to all the states except the protection against quartering troops in the Third Amendment the right to grand jury indictment the Fifth , and the right to trial by jury in civil cases the Seventh.
Most American government texts go into a great deal of detail in discussing civil rights and liberties in a range of areas. The questions in all of these areas involve what the words of the Constitution mean when applied to very specific governmental actions or laws. Because new cases are being heard all the time that alter interpretations, textbooks need to be updated almost every year for some area of rights.
This poses a problem in trying to write a text that is designed to minimize the need for updating. How can we talk about areas of rights without giving all the latest cases? Here is how I shall attempt to accomplish this difficult task. I will still cover several major areas see the outline for this chapter. However, rather than give you all the latest cases, I shall talk about a few very important cases in the past and the alternative ways in which the Supreme Court might interpret the Constitution in the future.
If you want the very latest case, simply search the Web under the right or liberty in question. Because it is the first one, the courts have tended to take these protections and limits on what government can do more seriously than some of the rights in other amendments. For example, as noted earlier, the Court incorporated first amendment free speech rights in the early s well before it incorporated rights in criminal proceedings.
For each of the rights in the First Amendment, the Court has devised rules to help it judge whether government action is or is not in violation. Down through time these rules sometimes change. So we will start with religion and end with assembly and petition. As we noted earlier, the clause on religion has two parts, the establishment clause and the free exercise clause.
The courts have treated them separately. So we shall do likewise. The First Amendment begins: One interpretation is that all this prohibits is an official state religion.
The Founders certainly did not want to have anything like the Church of England in the United States. Many people came to this country to escape religious persecution. However, some colonies, like the Massachusetts Bay Colony, had an official religion and banned all other religions. Later the state of Massachusetts allowed taxes to be collected to subsidize religious organizations at the local level.
So perhaps no official state church at the national level is all the Founders were thinking about. If no official state church is all the establishment clause means, then government can get involved in aiding and helping religions as long as none are an official state religion.
Teachers could lead students in prayer in public schools, government could grant scholarships to religious schools and help them build facilities, and officials could place religious displays on public grounds to promote religion. Under this interpretation a clear wall of separation must exist between government and religious institutions. Any entanglement between government and religion would violate this interpretation. Pretty good historical evidence exists that this kind of more complete separation is what at least some of the Founders may have wanted.
In many decisions the Supreme Court has used this phrase. A number of Supreme Court rulings have prohibited public school teachers from leading students in prayer, or even students leading organized prayers at school functions, like football games.
Does this mean that all prayer in public schools is banned? As the joke goes, prayer will always be in schools as long as schools have algebra tests. The joke captures an often overlooked aspect in the school prayer controversy, that private individual prayer is not prohibited. However, this wall of separation has many gaps in it, some by way of court rulings and some by common practice in communities. Spontaneous team prayers led by students in public schools are generally not considered to be.
So the intent of public officials may influence whether or not a specific practice violates the establishment clause. How high should any wall of separation be? This is a complex question that will be debated as long as we exist as a society. If you are religious and a member of the dominant religion in your community, you may feel that the government is being anti-religion when it prohibits a religious Christmas pageant in your public elementary school.
On the other hand, suppose you move to a community where you are suddenly a member of a tiny religious minority. Suppose the majority wants to have pageants that celebrate their beliefs. You might suddenly feel more warmly toward a higher wall of separation that keeps your children from being subjected to what you see as religious propaganda. As the old saying goes, where you stand depends on where you sit. The Supreme Court is unable to help us with a clear set of general rules because they have been rather evenly divided in recent years.
When they are evenly divided, we will see a lot of five to four rulings that turn on tiny details in what was done by whom for what purpose. While you are allowed to hold any religious belief you like, that does not mean that you can engage in any religious practice you like.
Interpretation of what these words mean is critical. For example, what counts as a religion? The Supreme Court has gradually expanded what counts as religion. While once religion had to involve belief in a supreme being and was restricted to religious groups that had long historical standing, any sincerely held belief system now has religious standing. On the other hand, the courts have not recognized sham religions that people create to claim some benefit that the members want, like the legal right to smoke pot as a religious exercise or to have steak and beer as a regular part of a religiously required diet when in prison.
Interpretation is not the only problem. What happens when a religious practice conflicts with other laws? Suppose you believe that the only form of acceptable medicine is prayer. That is fine as long as you choose to turn down medicine that is prescribed for you. But what about medicine, vaccinations, or surgical procedures for your underage children?
In these cases the courts generally side with the interest of society in protecting children over the religious beliefs of parents. But sometimes the courts side with the parents, especially if the practice in question does not pose a grave threat and has some strong historical precedent.
Amish parents are allowed to violate school truancy laws because of their long-standing practice of working in family enterprises at an early age. Even though some religions may reject medical vaccinations, courts have ruled that requiring. The Court allows laws that may interfere with religious practices so long as those laws have a secular purpose. This means that the laws have a legitimate non-religious purpose, not a purpose that is aimed at restricting a religion.
States may pass laws restricting the public handling of dangerous snakes in religious. The Court has gone back and forth on the secular regulation rule. In the rule was undermined by a case involving Native Americans using hallucinogenic drugs, peyote, as part of their religious practice Employment Division v. This use had generally been protected before this case, but the new ruling ended that protection. This law attempted to turn the secular regulation test into law.
The Supreme Court responded by overturning part of that law, stating that Congress had gone too far in trying to impose an interpretation of the Constitution on the courts City of Boerne v. This was clearly a checks and balances decision pitting one branch against the other two.
But a few years later the Court quoted the compelling state interest idea again in ruling against government prosecution for using illegal drugs in a religious ceremony Gonzalez , Regulations in the law had required corporations to provide contraceptive care in employee health insurance.
The family that owned Hobby Lobby Corporation objected to some kinds of birth control methods, believing that they were forms of abortion. Their religious beliefs opposed abortion, so they argued that the law violated their First Amendment right to religious free exercise. The Supreme Court agreed in a 5 to 4 decision in Burwell v. That had never been done before. Whether other corporations will successfully claim religious free exercise rights to exempt them from regulations they oppose remains to be seen.
Will corporations owned by people who oppose homosexuality on religious grounds be able to refuse employment of or providing service to gays? Will corporations owned by people opposing all nonreligious medical care be exempt from providing any health insurance? Does this case mean that a corporation can impose the religious beliefs of its owners on employees, who may have very different beliefs? The second phrase in the First Amendment, following the religion phrase, refers to speech: The administration was losing popularity and was under attack for its conflicts with our former ally, France.
The new law allowed the government to expel any alien who criticized the government and fine and imprison any citizen who engaged in similar action. The government found citizens guilty under this broad law and imprisoned them.
Thomas Jefferson and his political allies strongly opposed the law and thought it to be unconstitutional on a variety of grounds. After Jefferson became president, he released and pardoned all who were found guilty of violating this law, and Congress repealed most provisions of the law. But it was never ruled to be unconstitutional. The Alien and Sedition Law clearly violated first amendment speech rights,.
The Supreme Court has made many rulings about when speech is protected and when it is not. It has set up guidelines or tests by which it judges the constitutionality of various kinds of speech. Charles Schenck had been prosecuted under a law passed by Congress that forbade any expression that undermined the defense of the nation.
It found that the anti-draft leaflets Schenck distributed did present such a danger, and it upheld his conviction. Remember, this was in the atmosphere of the world war that was taking place. The law would be constitutional only if it was aimed at speech in situations that posed some obvious and imminent danger. The Supreme Court generally considers how laws that restrict speech take into account the context. Since that time the Court has gone back and forth on how much government can restrict speech.
The Court allowed restrictions on speech that posed some danger in the not so distant future. As the scare passed, the Court moved back to give more protection to speech. It reinterpreted the clear and present danger test. Now the government had to show something more difficult for a restriction to be constitutional. It had to show that the.
Symbolic speech or actions are treated by the Supreme Court much the same as spoken or written words. But sometimes when actions come into conflict with other governmental obligations, the Court has allowed legal prohibitions to stand. For example, during the Vietnam War, protesters often burned their draft cards.
The Court did not protect that symbolic speech because burning draft cards interfered with providing a national defense, an important responsibility of the government. Burning the American Flag, or a representation of the flag as in this picture, is a form of. On the other hand, if the symbolic speech is merely offensive and has a political content, the Court has generally protected it.
The Supreme Court has consistently struck down laws that prohibited the burning of the American flag. It even upheld the right of school children to wear black armbands to school in protest of the Vietnam War so long as school officials could not show that the armbands would be disruptive. All of this involves political speech. But what about speech that is not political in nature? What if speech is simply thought to be obscene? Obscenity is not considered to be speech by the courts, so obscenity has no first amendment protection.
That seems simple enough. The problem is that we have to define obscenity and then decide what is and is not obscene. This is a problem that the courts have wrestled with for a long time. They have never found a simple objective definition. Perhaps obscenity is like beauty, in the eye of the beholder. He would rather have been remembered for the weightier decisions he authored. But alas, his fears were well-founded, because this is the only time we will mention him in this text. Nevertheless, his point is valid in light of the failure of the Court to ever devise an acceptable, workable definition that gave clear guidance as to what material is and is not obscene.
No matter how hard the Court tried, it inevitably had to examine the material and see for itself! So the materials would have to be without value everywhere , not just in a small town or city that wanted to ban some material.
This was a tough test, and the result was that government was not able to write laws that banned very much. The second decision came later when the membership on the Supreme Court had become more conservative.
California , the Court changed two of the tests that flowed from Roth. Local communities could decide for themselves rather than have national standards. Publishers and producers faced a nightmare in knowing what they could or could not produce. Once again those convicted under state and local laws appealed and the Court had to look at a lot of questionable books and movies. Most were found to have some serious value.
So this effort to allow more restrictions also failed. Cover of a American edition of Fanny Hill , a British novel that had a long. Today most places have pretty much given up trying to write laws that directly ban obscenity. The trend has been to control places that distribute such materials through zoning. However, these efforts are not very effective because the rise of the internet has made obscene materials from across the globe available to anyone with a computer and access to the Web.
Clearly some kinds of obscene materials, such as child pornography, may still be prohibited by law. But what about the production or possession of child pornography by computer animation where no real children are involved?
The courts threw out a section of a national law that extended the definition of child pornography to computer animation because no real harm to real children is involved and the government could not show a real connection between such material and illegal acts by pedophiles Ashcroft v.
Free Speech Coalition , Free speech rights do not protect anyone from engaging in libel or slander against someone else. Libel refers to printed speech and slander to spoken speech that is false and harmful. However, in the interests of maximizing political speech, the courts have treated the people who may be harmed differently depending on whether they are private persons or public figures.
If you are a private figure who is not running for office or who makes a living off celebrity status, all you must show to win a libel or slander suit is that the statements were false and they harmed you. On the other hand, if you are a public figure, you must also show that the person making the statements did so with malice , which means having the intent to harm you.
That is hard to show in a court of law. This also means that politicians cannot stifle criticism by effectively threatening to sue whenever they get criticized. In effect, we put up with some falsehoods to have free and open political speech. Public figures have less protection than private figures, because to win a libel suit. But when does someone cross the. Pictured here in a colorized U.
One last area that falls under speech is loyalty oaths. Can government require citizens to engage in speech that pledges loyalty or respect for the nation or its symbols?
Can the government deny public employment to those who refuse to do so? Can they be denied access to public facilities, such as schools? As in other areas, the courts have shifted positions, generally allowing such oaths during the red scares in the period after WWII, but then moving in the direction of overturning most oaths since the s.
Saying the Pledge of Allegiance and saluting the flag combines symbolic and spoken speech. In the years leading up to and into WWII, many schools required that students do both.
Refusal was punishable by expulsion. The Supreme Court upheld this requirement in a case. But after some changes in the membership of the Court, the Court reexamined the question in Barnette v.
West Virginia State Board of Education. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Schools may not require that children recite the Pledge of Allegiance on two First. Amendment rights, speech and religious freedom U. Navy photo, public domain. Many times throughout history the government has tried to prevent the press from publishing materials.
Two decisions are important here. Minnesota , the Supreme Court ruled that a Minnesota law that allowed the state to prevent a newspaper from printing racial attacks and slurs violated the First Amendment.
The decision came pretty close to an absolute ban on what we might see as press censorship. Front page of the newspaper that openly attacked Jews, Catholics, labor unions, and blacks,. In the middle of the Vietnam War another case arose.
In , a set of papers called the Pentagon Papers were leaked to the N. These papers were a compilation of the history of decisions made and studies done by the government that led to our involvement in that war.
The Secretary of Defense ordered this study in the late s. Ironically, the leak came from someone who had worked in the Defense Department in compiling the papers, Daniel Ellsberg. Ellsberg had turned against the war and felt that the papers clearly showed that the government was ignoring its own findings about the war. President Nixon ordered the Justice Department to stop publication on the grounds that publication would endanger national security by revealing critical classified material.
The Supreme Court examined the papers, concluded that the only danger was political embarrassment, and allowed publication. Often those rights not previously mentioned but have become evident that they exist, such as Universal Sufferage. Those are the distinctions made in Constitutional Law courses. Do what you will with it to answer your homework question. For the best answers, search on this site https: Related Questions In the United States the term civil liberty refers to:?
In the united States the term civil liberty refers to:? In the united states the term civil liberty refers to? What is the difference between Civil Rights and Civil Liberties and give examples?
Government more dangerous to our own liberties than the enemy it pretends to protect us from? Isn't the easiest way to damage someone's character to accuse them of being a Liar? Civil liberties concern the actual basic freedoms; civil rights concern the treatment of an individual regarding certain rights. Unlike civil liberties , where the government grants broad-based rights to individuals, civil rights are not only granted by the government but also contain a protective aspect of those rights based on certain characteristics.
One way to consider the difference between civil rights and civil liberties is to look at 1 what right is affected, and 2 whose right is affected. For example, as an employee, you do not have the legal right to a promotion, mainly because getting a promotion is not a guaranteed "civil liberty.
By choosing not to promote a female worker solely because of the employee's gender, the employer has committed a civil rights violation and has engaged in unlawful employment discrimination based on sex or gender. If a couple either same-sex or opposite-sex is denied a marriage license because the court clerk has decided not to issue them at all, then their civil liberties have been violated.
But if the clerk denied marriage licenses only to LGBT couples, it is a civil rights violation.
right to express oneself and one's views in spoken words, actions, printed materials, assemblies or gatherings and petitions submitted to the government. It refers to the collective rights guaranteed in .
) The term civil liberties refers to specific individual rights that A. apply in civil cases but not in criminal cases. B. apply in civil cases but not in military ones.
Sep 15, · Civil liberties are rights and freedoms that protect an individual from the state. Civil liberties set limits on the government so that its agents cannot abuse their power and interfere unduly with the lives of private bophona.ml: Resolved. Although the two terms overlap considerably in ordinary usage (and are often difficult to distinguish in concrete instances), the term civil liberties generally refers more specifically to the protection of the individual's rights to form and express his or her own preferences or convictions and to act freely upon them in the private sphere.
Civil liberties are guaranteed by the Constitution and cannot be taken away, while civil rights refer to the rights to equal treatment for specific groups based on race, gender, sex, etc. e. The term “civil liberties” was used prior to the twentieth century, while the term “civil rights” was used afterward%(20). Civil liberties are rights that are guaranteed to the citizens or residents of a country or territory. They're a matter of fundamental law. Civil Liberties vs. Human Rights Civil liberties generally differ from human rights, which are universal rights to which all human beings are entitled regardless of where they live. Think of civil liberties as rights that a government is contractually obligated to protect, usually by a .