CHAPTER 4 NOTES.docx - Chapter 4 Civil Liberties Civil...

Chapter 4: Civil Liberties
 Civil Liberties: personal guarantees and freedoms that govt cannot abridge, by law, const, or judicial
interpretation; (As guarantees of “freedom to” action, they place limitations on the power of the govt to restrain
or dictate to an individual’s actions
 Civil Rights: govt-protected rights of individuals against arbitrary or discriminatory treatment by govts or
individuals; (provide “freedom from”)
I. Roots of Civil Liberties: Bill of Rights (4.1)
 Federalists: argued that a B of R was NOT necessary for 3 main reasons
1. B of R not necessary in a const’l republic, plus state const’s contained their own B of R
2. B of R could be dangerous
3. A national B of R would be impractical to enforce-validity depend on public opinion
 Some Framers disagreed (anti-Federalists)
o James Madison and Thomas Jefferson had lively correspondence about the need for a B
of R
 Bill of Rights: first 10 amend, largely guarantee specific rights and liberties
 9 th amend: make it clear that listing rights does not mean that other rights do not exist
 10
th
amend: powers reserved to the states
A. Incorporation Doctrine
 14
th
amend: 1 of 3 major amends enacted after the Civil War, extending “equal protection of
the law” to all citizens
 Due process clause: clause contained in the 5 th and 14 th amendments; over the years, it has
been construed to guarantee a variety of rights to individuals
 Substantive due process: judicial interpretation of the 5
th
and 14
th
amendments’ due process
clauses that protects citizens from arbitrary or unjust state or federal laws
o Interference with state pwr was rare and states passed sedition laws: laws that
make it illegal to speak or write any political criticism that threaten to diminish
respect for the govt, its laws, or public officials. (were overturned as a result of the
Gitlow decision)
o Gitlow v New York (1925): Supreme Ct case that extended the 1
st
Amend’s
protections of freedom of speech and of the press to the state govts
 Incorporation Doctrine: an interpretation of the Const holding that the due process clause of
the 14 th amend requires state and local govts guarantee the rights stated in the B of R
B. Selective Incorporation and Fundamental Freedoms
 Not all rights in the B of R guaranteed/applicable to states
 Selective Incorporation: judicial doctrine whereby most, but not all, protections found in the
B of R are made applicable to the states via the 14
th
amend
 Fundamental freedoms: those rights defined by the Court as essential to order, liberty, and
justice and therefore entitled to the highest standard review (ex: speech, press, assembly are
essential; housing soldiers and jury trials are not)
II. First Amendment Guarantees: Freedom of Religion (4.2)
 Separation of church and state; high wall btwn
 Thomas Jefferson’s idea
 Sup Ct has noted a difference in two concepts “freedom to believe and freedom to act.” The first is
absolute, but in the nature of things, the second cannot be. Conduct remains subject to regulation
of society.” (human sacrifice is not allowed, the belief in it is.)