Poly Sci Chap 5 - Civil Liberties The Logic of American...

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Civil Liberties Chapter Five  The Logic of American Politics
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Writing Rights & Liberties into the Constitution The Constitution as it emerged in 1787 did not seriously address civil liberties. The Framers believed a bill of rights was not necessary if the institutions of government were designed correctly. Others believed that listing rights in the Constitution might imply that the federal government had the authority to restrict freedoms that were not expressly protected.
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Civil Liberties The Constitution actually acquired civil liberties protections in several steps: The Bill of Rights. Two years passed before the required three-quarters of the states ratified the Bill of Rights. Barron v. Baltimore (1833). The Bill of Rights only applied to the federal government. The Fourteenth Amendment was intended initially to protect former slaves by explicitly declaring the rights of citizenship were not subject to state controls . While the Fourteenth Amendment failed to achieve its immediate goal, a century later it extended the rights and liberties of all citizens.
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Incorporation via the Fourteenth Amendment In 1873 the Supreme Court rejected its first chance to incorporate the Bill of Rights into the Fourteenth Amendment. Slaughterhouse cases. Argument that “ privileges and immunities ” of citizens were denied due to a monopoly over slaughterhouse business. Court (5 to 4) ruled that the monopoly did not violate the Fourteenth Amendment because it had been intended to protect black citizens.
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Incorporation via the Fourteenth Amendment Through the process of selective incorporation -- the piecemeal application of the various provisions of the Bill of Rights to state laws and practices -- civil liberties have gradually “ nationalized .”
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Judicial I nterpretation Incorporation occurred not through legislative mandate or the amendment process but through judicial interpretation . While interpretations are meant to be “objective,” the reality is that judicial interpretations often vary as a product of justices’ ideological preferences. As justices come and go from the Court, judicial doctrine may change. Trends in civil liberties tend to reflect the shifting ideological composition of the Court.
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Freedom of Speech Freedom of speech is essential to representative government and the exercise of individual autonomy. In Schenck v. United States (1919) the Court attempted to define the degree to which federal legislation must protect free speech. Justice Oliver Wendell Holmes created the clear and present danger test as he wrote the opinion for Schenck . When the government is unable to show that particular words demonstrate a “clear and present danger,” the words are protected.
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Nonthreatening Speech and Expression Court decisions have supported the ability of unpopular groups to express their beliefs.
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