Civil Liberties
Basic Topics:
1 - Individual Liberty
2 - Negative Liberty
3 - Are there limits on liberties?
4 - United States Bill of Rights.
5 - Texas Bill of Rights.
6 - Religious Rights
7 - Political Rights
8 - Due Process Rights.
9 - Criminal Justice Policy
10 - Landmark Cases.
11 - 14th Amendment.
12 - Selective Incorporation.
Terminology
Civil Liberties
- civil liberties
- civil rights
- fundamental liberties
- unenumerated liberties
- dual citizenship
- 14th Amendment
- selective incorporation
- substantive civil liberties
- procedural civil liberties
- due process
- Miranda rule
- establishment clause
- Lemon Test
- sincere religious belief
- free exercise clause
- strict scrutiny
- political speech
- clear and present danger
- symbolic speech
- speech plus action
- assembly
- petition
- prior restraint
- libel
- slander
- obscenity
- student speech
- hate speech
- commercial speech
- right to bear arms
- right of the criminally accused
- exclusionary rule
- indictment
- grand jury
- double jeopardy
- self-incrimination
- eminent domain
- right to counsel
- bail
- fines
- cruel and unusual punishment
- unenumerated rights
- privacy
- government surveillance
- judicial rule
- judicial standard
- religion
- establishment clause
- free exercise clause
- strict separation
- accommodation
- speech
- 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
GOVT 2306
Criminal Justice
- arraignment
- bail
- collateral consequences
- community supervision
- criminal disenfranchisement
- death penalty
- deferred adjudication
- grand jury
- guardian ad litem
- indigent defendants
- no contest
- parole
- plea bargain
- probable cause
- prosecutor
- search and seizures
- voir dire
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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.
- Fundamental Rights: The trick is figuring out what these are. Here is a partial (possible) list:
- privacy
- labor
- property
- travel
- marriage
- vote.
5 - Landmark Cases
What is a landmark case?
- distinguishing a new principle that refines a prior principle, thus departing from prior practice without violating the rule of stare decisis;
- establishing a “test” or a measurable standard that can be applied by courts in future decisions.
In the United States, landmark court decisions come most frequently from the Supreme Court. United States courts of appeals may also make such decisions, particularly if the Supreme Court chooses not to review the case or if it adopts the holding of the lower court
Examples:
Marbury v. Madison, 5 U.S. 137 (1803). Section 13 of the Judiciary Act of 1789 is unconstitutional because it attempts to expand the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. Congress cannot pass laws that contradict the Constitution. This case featured the first example of judicial nullification of a federal law and was the point at which the Supreme Court adopted a monitoring role over government actions.
Ableman v. Booth, 62 U.S. 506 (1859). State courts cannot issue rulings that contradict the decisions of federal courts.
Cooper v. Aaron, 358 U.S. 1 (1958). The states are bound by the decisions of the Supreme Court and cannot choose to ignore them.
Brandenburg v. Ohio, 395 U.S. 444 (1969). The mere advocacy of the use of force or of violation of the law is protected by the First Amendment. Only inciting others to take direct and immediate unlawful action is without constitutional protection.
New York Times Co. v. United States, 403 U.S. 713 (1971). The federal government's desire to keep the Pentagon Papers classified is not strong enough to justify violating the First Amendment by imposing prior restraints on the material.
Frontiero v. Richardson, 411 U.S. 677 (1973). Sex-based discriminations are inherently suspect. A statute that gives benefits to the spouses of male members of the uniformed services, but not to the spouses of female members, (on the assumption that only the former are dependent) is unconstitutional.
Buckley v. Valeo, 424 U.S. 1 (1976). Spending money to influence elections is a form of constitutionally protected free speech; therefore, federal limits on campaign contributions are constitutional in only a limited number of circumstances.
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Prosecutors may not use peremptory challenges to dismiss jurors based on their sex.
Lawrence v. Texas, 539 U.S. 558 (2003). A Texas law that criminalizes consensual same-sex sexual conduct furthers no legitimate state interest and violates homosexuals' right to privacy under the Due Process Clause of the Fourteenth Amendment
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Limits on corporate and union political expenditures during election cycles violate the Free Speech Clause of the First Amendment. Corporations and labor unions can spend unlimited sums in support of or in opposition to candidates as long as the spending is independent of the candidates
Weeks v. United States, 232 U.S. 383 (1914). Evidence gathered by law enforcement in violation of the Fourth Amendment should be excluded from criminal proceedings. This “exclusionary rule” applied only to federal courts, not state courts.
Gideon v. Wainwright, 372 U.S. 335 (1963). All defendants have the right to an attorney and must be provided one by the state if they are unable to afford legal counsel.
In re Gault, 387 U.S. 1 (1967). Juvenile defendants are protected under the Due Process Clause of the Fourteenth Amendment.
Mapp v. Ohio, 367 U.S. 643 (1961). Evidence that is obtained in violation of the Fourth Amendment is inadmissible in state court. Notable for expanding the “exclusionary rule” originally articulated against only the federal government in Weeks v. United States.
Terry v. Ohio, 392 U.S. 1 (1968). Police may stop a person if they have a reasonable suspicion that the person has committed or is about to commit a crime and frisk the suspect for weapons if they have a reasonable suspicion that the suspect is armed and dangerous without violating the Fourth Amendment.
Georgia v. Randolph, 547 U.S. 103 (2006). Police cannot conduct a warrantless search in a home where one occupant consents and the other objects.
Riley v. California, 573 U.S. ___ (2014). Police must obtain a warrant in order to search digital information on a cell phone seized from an individual who has been arrested.
Carpenter v. United States, 585 U.S. ___ (2018). Government acquisition of cell-site records is a Fourth Amendment search, and, thus, generally requires a warrant
Kennedy v. Louisiana, 554 U.S. 407 (2008). The death penalty is unconstitutional in all cases that do not involve murder or crimes against the state such as treason.
6 - 14th Amendment
- 14th Amendment. Section One
7 - The Incorporation of the Bill of Rights to the States.
- - 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.
