POLS 206 1st Edition Lecture 7Outline of Last Lecture I. Federalism Outline of Current Lecture II. Civil LibertiesIII. Constitutional LibertiesIV. What is in the Bill of Rights?V. Amendments: the 14th AmendmentVI. Elaborations and qualifications of the First Amendment:a. Freedom of Religionb. Freedom of Speech (Expression)Current Lecturel. What are Civil Liberties?- rights the government gives and can take away, lately quite frequently. This is NOT the same as civil rights, which are rights every person is naturally born with and can not be taken away.ll. Constitutional Liberties: specified rights from the original Constitution:a. Guarantee of Habeas Corpus- everyone has protection to be charged before being held, brought before a judged and explained why they are being chargedb. No bills of attainder- no one can be punished in court with out a trial by juryc. No ex post facto laws- Congress can not charge someone with a crime if they did the crime while it was legallll. What is in the Bill of Rights? Originally, it’s major purpose was a barring against the Federal government, so it did not really have to do with State Governmenta. 1st- restricts Congress- freedom of speech, press, religion, petitionb. 2nd, 3rd, 4th-restricts the Executive branch- right to bear arms, limits on search and seizure (most of time must need a warrant)c. 5th, 6th, 7th, 8th- restricts the Courts- right to due process and fair trialsd. 9th and 10th- restricts the National Government- rights are reservedlv. Amendments: 14th Amendment: proved the State Government can not take away liberties, just like the Federal Government a. Essentially, there are two clauses (with civil liberties): due process (anytime life or liberties are taken away, there is a trial) and equal protection for everyoneb. This was significantly proven in incorporation in two court cases:i. Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago (1897)- Chicago tried to take some of the railroad company’s land for city use but there was notrial about it (since private property is one of the liberties), and so the Railroad fought against it. This was the first case dealing with this kind of problem with the State Government. ii. Gitlow v. New York (1925)- Gitlow advertised for a violent overthrow of the government and the government said that is against the law, wanted to changehis speech. They go to court, Gitlow arguing for freedom of the press. It ends up being a win-lose for both “opponents”. Court says the state does not have the right to change his speech because that would be violating his right to freedom of speech. However, Gitlow cannot advertise active violence against the government because violence affects peoples and someone could get hurt,and part of the government’s job is to protect people’s health, Gitlow would beviolating that. V. Elaborations and qualifications of the First Amendmenta. Freedom of Religion: i. In 1787, 9 of 13 Colonies had official state religions- legal at that time because the Bill of Rights applied only to the Federal Government, not the State Governmentii. Jefferson preferred “Separation of Church and State” but that is now where in the Bill of Rights, though a lot of court cases use that ideaiii. In the First Amendment, it says “Congress shall make no law respecting an establishment of religion”- meaning, Congress can not make laws that seem to favor one religion over another iv. Establishment Clause: Everson v. Board of Education (1947)- a debate about whether letting children take a public school to their private religious school, but decided it wasabout protecting the kids, very difficult to say whether the law is favoring one religion over another. Engel v. Vitale (1962)- State can not force kids to pray to a religion they do not believe in school, for it is a violation of the First Amendment right. They have moments of silence now. v. Aid to Parochial schools: Lemon v. Kurtzman (1971)- Three part test- (1) purpose mustbe nonreligious (2) cannot be to advance or inhibit religion, it is to purely help the kidseducation (3) must avoid “excessive government entanglement”, the government can not just come in to monitor to make sure they are using the aid appropriately. vi. Free Exercise Clause: belief and practice are different; Reynolds v. U.S. (1878)- there can be no official language of a state; religious practices and the workplace (TitleVll of the Civil Rights Act of 1964)- businesses will try to accommodate you but not if ithurts business. b. Freedom of Speech (Expression)i. Early restrictions on expression: 1917 Espionage Act; Schenck v. United States (1919)ii. Clear and Present Danger Test: essentially, if speech affects other health, your freedom of speech is then limited. This is the first time that tests freedom of speechiii. Dennis v. United States (1951)- Seditious “speech” and meetings of the Communist Party- is that legal? They were peaceful meetings but the United States was scared of Communists then and so was considered not legal.iv.Brandenburg v. Ohio (1969)- KKK meeting and promotion of violence (it was expression, there’s not really going to be violence); “Imminent Lawless Action” (they are wrong, the only time speech is not protected is when you advocate violence, unless you are in a peaceful location, like a classroom); Preferred Position Doctrine (Democratic Essentials, so necessary that any attempt to limit is considered unconstitutional until proven otherwise) v. What about Symbolic Speech? Texas v. Johnson- a guy protested against the Government (by burning a flag) and the police arrested him. Speech is not just
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