Civil Liberties
Basic Topics:
1 - Individual Liberty
2 - Negative Liberty
3 - Are there limits on liberties?
4 - United States Bill of Rights.
5 - 14th Amendment.
6 - Texas Bill of Rights.
7 - Criminal Justice Policy
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Detail:
1 - Individual Liberty
Definition: The term “liberty” appears in the due process clauses of both the Fifth and Fourteenth Amendments of the Constitution. As used in the Constitution, liberty means freedom from arbitrary and unreasonable restraint upon an individual. Freedom from restraint refers to more than just physical restraint, but also the freedom to act according to one's own will. On numerous occasions the Supreme Court has sought to explain what liberty means and what it encompasses.
Not all governments are based on the concept of individual liberty.
- Authoritarianism.
- Totalitarianism.
Individual liberty fits in with the concept of popular sovereignty, which we mentioned when we covered the U.S. and Texas Constitutions.
- Definition: Popular sovereignty is the principle that the leaders of a state and its government are created and sustained by the consent of its people, who are the source of all political legitimacy. Popular sovereignty, being a principle, does not imply any particular political implementation. Benjamin Franklin expressed the concept when he wrote that "In free governments, the rulers are the servants and the people their superiors and sovereigns".
2 - Negative Liberty
- Definition: Governments in the United States are best characterized as upholding "negative" rather than "positive" liberty. Positive liberty focuses primarily on the individual and what they can do. An example would be laws that provide education and access to legal representation. Negative liberty focuses on government and limits its ability to place arbitrary and unreasonable restraints on individuals. For example: governments cannot prevent people from becoming educated or from accessing legal representation.
A good example of negative liberty is the phrasing of the First Amendment of the U.S. Constitution:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Note the phrase "Congress shall make no law"
3 - Are there limits on liberties?
What might limit the extent of one's liberties?
- The Harm Principle: The harm principle holds that the actions of individuals should be limited only to prevent harm to other individuals. John Stuart Mill articulated the principle in the 1859 essay On Liberty, where he argued that "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."
- The Common Good: In ordinary political discourse, the “common good” refers to those facilities—whether material, cultural or institutional—that the members of a community provide to all members in order to fulfill a relational obligation they all have to care for certain interests that they have in common. Some canonical examples of the common good in a modern liberal democracy include: the road system; public parks; police protection and public safety; courts and the judicial system; public schools; museums and cultural institutions; public transportation; civil liberties, such as the freedom of speech and the freedom of association; the system of property; clean air and clean water; and national defense.
4 - United States Bill of Rights.
- The politics behind it: Added to the U.S. Constitution at the insistence of a number of states in order to place specific limits on the power - at least the potential power - of the national government.
- Substantive Liberty: Limits on the ability of government to restrain certain activities. These are contained in:
- - The 1st Amendment
- - The 2nd Amendment
- - The 3rd Amendment
- Procedural Liberty: Limits on the procedures used to search, prosecute, try, and punish people for the violation of criminal laws or civil infractions. These ate contained in:
- - The 4th Amendment
- - The 5th Amendment
- - The 6th Amendment
- - The 7th Amendment
- - The 8th Amendment
- Unenumerated Liberty: An acknowledgement that other liberties exist beyond those that are specifically named in the Bill of Rights.
The trick is figuring out what these are. Here is a partial list:
- privacy
- labor
- property
- travel
- marriage
- vote.
5 - The Incorporation of the Bill of Rights to the States.
- 14th Amendment. Section One
- - Barron v Baltimore.
- - Dual Citizenship.
- - Corporate Persons.
- - Natural Persons.
- - Incorporation of the Bill of Rights to the States.
6 - Texas Bill of Rights.
Note similarities and differences between the U.S. and Texas documents.
Texas' version is much longer and detailed. Since it is more easily amended, it currently contains matter one cannot find in neither the national version, nor the original version.
- Texas 1876 version.
- Texas current version.
7 - Criminal and Civil Justice Policy
Criminal Justice: Criminal justice is an umbrella term that refers to the laws, procedures, institutions, and policies at play before, during, and after the commission of a crime. As a modern concept, criminal justice expresses two central ideas:
- Suspects, convicted criminals and victims of crime all have certain rights;
- Criminal conduct should be prosecuted and punished by the state following set laws.
By contrast, throughout ancient history, criminal acts were resolved privately, often by ”blood feuds” for murder and trial by ordeal for other crimes.
Civil Justice: Civil justice is a crucial component of the legal system and is focused on resolving disputes between individuals and organizations. This is in contrast to criminal justice, which is primarily concerned with punishing those who commit crimes against the state. Civil justice deals with a wide range of issues, such as property, personal injury, and civil rights. These disputes are resolved through various means, including negotiation, mediation, arbitration, or litigation in court.
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Isolated Lectures:
- The Declaration of Independence.
- Freedoms v Social Harm
- The Harm Principle.
- Substantive Freedoms
- Religion
- Religious Liberty: Landmark Supreme Court Cases.
- Kennedy v. Bremerton School District.
- Free Press
- Free Speech
- Peaceful Assembly
- Petition for Grievances
- Arms
- 9th Amendment
- Unenumerated Rights.
- Procedural Freedoms
- Searches and Seizures
- Indictments
- Trials
- Punishment
- The Incorporation of the Bill of Rights to the States.
- Civil Liberties.
- United States Bill of Rights.
- Texas Bill of Rights.
- Substantive Liberties.
- Religious Liberty: Free Exercise Clause.
- Religious Liberty: Establishment Clause.
- The Procedural Liberties - Due Process.
- Case Law
- - Texas State Law Library: Case Law.
- - Religion: Lawes Divine, Morall and Martiall, etc
- - Speech on Campus: Student Rights and Responsibilities: Student Expression and Use of College Facilities.
Terminology
civil liberties
civil rights
selective incorporation
fundamental liberties
privacy
penumbras
emanations
abortion
- roe
- casey
- dobbs
judicial rule
judicial standard
religion
establishment
free exercise
strict separation
accommodation
speech
preferred position
limits
political speech
clear and present danger
symbolic speech
fighting words
hate speech
student speech
press
prior restraint
obscenity
miller tests
libel
second amendment
due process rights
habeas corpus
right of the accused
search and seizures
exclusionary rule
grand jury
double jeopardy
Miranda warnings
rights at trial
right to counsel
punishment
cruel and unusual
death penalty
USA Patriot Act
surveillance
rights of non-citizens
