The opening vignette illustrates how the courts are asked to balance order and freedom. Under what conditions can speech or expression be censored to prevent unrest or disorder? Is criticism of the president likely to promote disorder? This chapter looks at how the courts have resolved conflicts among the three values that are so important to democratic politics—order, freedom, and equality.
Court decisions involve a balancing act among these values. A review of the cases in the chapter may lead a person to conclude that not one of these values is ever preferred unconditionally over the others. The freedoms of speech, press, and assembly are all particularly important to the conduct of democracy, yet the Supreme Court has sometimes limited them, in the name of order, when exercising these freedoms would create a very serious danger. Furthermore, where certain types of expression are concerned—for example, obscenity—the Court may choose to uphold the value of order by supporting community standards. On the other hand, the fact that the exercise of these freedoms may offer an affront to the majority and threaten to disrupt established patterns of social order is not always enough to convince the Court to restrict them.
Courts may forbid prayer in public schools under any circumstances, but they may sometimes find that public monies can be used to fund nativity displays or aid church schools. The courts balance freedom and order in these instances.
As a part of the task of upholding order, the government punishes those who violate laws and endanger the lives and property of others. However, those accused of crimes may not be deprived of their freedoms without due process of law. This means, among other things, that they must be informed of their legal rights, including the right to an attorney and to protection against self-incrimination.
Enforcing these rights may sometimes mean that guilty people go free, but in balancing order and freedom, the courts often decide that the threat to order posed by freeing a guilty person is less worrisome than the threat to freedom that is posed by denying an accused person due process of law. With respect to the right to personal autonomy, the Supreme Court has given mixed signals. In cases involving abortion, contraception, and, recently, homosexual activity, the Court has defended individual freedom. But the Supreme Court has tolerated additional restrictions on abortions and remains deeply divided on the issue.
The Court often uses the Bill of Rights to protect citizens from the national government. But the Bill of Rights did not initially apply to the states; while the national government was barred, for example, from using illegally obtained evidence in trials, state courts were not. Gradually in this century, however, the Court has used the Fourteenth Amendment to extend the provisions of the Bill of Rights to the states as well.
The Bill of Rights
In the American system, the values of freedom, equality, and order often conflict. In such cases, each side may claim that its view is rooted in the law. Disputes over issues involving such basic values are usually settled in the courts by our unelected judiciary. Conflicts often arise from different views on the rights of citizens, and a major source of people’s rights is the Constitution—in the Bill of Rights and the Fourteenth Amendment. The Constitution guarantees civil rights and civil liberties. A civil right declares what the government must do or provide; a civil liberty is a guarantee to individual citizens that acts as a restraint on government.
Freedom of Religion
The First Amendment provides for freedom of religion, speech, press, and assembly. These protections of individual freedoms may conflict with the need for order—an example of the original dilemma of government discussed in Chapter 1. Freedom of religion is guaranteed in two clauses. The first, the establishment clause, forbids any law that would create an official religion; the second, the freeexercise clause, prevents the government from interfering with the practice of religion. The establishment clause erected “a wall of separation between church and state.” The government is also supposed to be neutral between religions and between the religious and the nonreligious. On certain issues, such as government aid to church-related schools, the Supreme Court has allowed what opponents have seen as violations of the establishment clause. Reasoning that textbook loans and transportation are aids to students, not churches, the Court has allowed some support to church schools.
In 1971, the Lemon test put forth guidelines for determining constitutionality under the establishment clause. The Court loosened its application of the Lemon test by allowing public school teachers to provide government-mandated classes to disadvantaged youngsters in New York parochial schools. A 2002 decision upholding school voucher programs further weakened the standards outlined in Lemon. The Supreme Court has also relaxed restrictions on the use of public funding for Christmas displays. On the issue of school prayer, however, the Court has maintained a consistent position that public school prayer violates the establishment clause. In 2000, the Supreme Court struck down the practice of organized student-led prayer at public high school football games. The free-exercise clause also gives rise to conflicts when the practice of a certain religion leads a person to do what is forbidden by law or to refuse to do what is required by law. A person may not be forced to take a job that requires him or her to work on the Sabbath, but the Court has forbidden participation in traditional religious rituals that involve the use of illegal drugs. The Court reasoned that religious beliefs are inviolate, but antisocial actions in the name of religion are not protected by the Constitution. The perceived narrowing of the range of free expression of religion led Congress to pass the Religious Freedom Restoration Act that required the government to meet strict scrutiny before interfering with religious practices. The Court quickly ruled the popular act unconstitutional, noting that Congress could not change the Constitution.
Freedom of Expression
Freedom of expression, including freedom of speech and freedom of the press, provides a right to unrestricted discussion of public affairs, yet these rights have never been absolute. Initially, the First Amendment clauses seemed aimed at preventing prior restraint. As the First Amendment speech doctrines developed, justices argued that speech creating a “clear and present danger” may be limited. “Symbolic speech” and “fighting words” may receive even less protection, though the Supreme Court has ruled that flag burning is a constitutionally protected form of expression. Obscenity—although hard to define—is not protected by the Constitution, and the Court agreed that the government can regulate distribution of obscene materials. Yet, the Court has also affirmed broad latitude for freedom of speech in cyberspace. In 1999, a federal court issued a permanent injunction closing a website of some antiabortion advocates who threatened doctors performing abortions.
Freedom of the press, including the ability to collect and report information without government interference, is crucial in a free society. Print media defend this freedom as absolute, although electronic media have had to accept some government regulation. Individuals may sue the media for libel, but public figures must show that there is actual malice involved when publishers print false statements about them. Basically, freedom of the press means freedom from prior restraint. The Court has been reluctant to limit freedom of the press in order to ensure a fair trial. However, reporters are not protected from the demands of law enforcement and may be required to reveal their sources. Only in the most extreme and compelling cases has prior restraint been considered justified, as, for example, when publishing certain material might mean nuclear annihilation.
The First Amendment also provides the right to peaceably assemble and to petition the government for redress of grievances. This right has merged with freedom of speech and freedom of the press under the general heading of freedom of expression.
The Right to Bear Arms
The Second Amendment’s guarantee of the right to keep and bear arms is a source of great controversy. Advocates of gun control see the guarantee as a collective one, centered on the right of states to maintain militias. Opponents of gun control argue that the amendment protects the individual’s right to own guns.
Applying the Bill of Rights to the States
The Bill of Rights was created to put limits on the power of the national government. Initially, its provisions did not apply to states. Under the Fourteenth Amendment, however, nearly all of the items in
Bill of Rights have gradually been extended to all levels of government. The Fourteenth Amendment guarantees people due process of law. The Court has interpreted this provision to mean that, in criminal proceedings, defendants in both state and national cases must be told about their constitutional rights, including their right to remain silent and their right to an attorney. The Court still allows jury size in trials to vary from state to state, however. The right to an attorney is considered fundamental, while the right to trial by a jury of a certain size is not. In one of the important cases of 2000, the court reaffirmed that Miranda had a constitutional rule, which Congress could not undermine through legislation. The Fourth Amendment provides people with freedom from unreasonable searches and seizures. The exclusionary rule, which disallows the use of evidence obtained illegally, helps to ensure this right, though this rule has been weakened in recent years. Interpretation of the exclusionary rule continues to divide the Court and serves as an example of the conflict between freedom and order.
The Ninth Amendment and Personal Autonomy
The Ninth Amendment left open the possibility that there were other rights, not enumerated, that might also be free from government interference. In the 1960s and 1970s, the Supreme Court used the Ninth Amendment as the basis for asserting that people have a right to privacy and that that right allows individuals to make their own choices about birth control and abortion. The appointment of conservative justices under Presidents Reagan, G. H. W. Bush, and G. W. Bush placed gay rights and abortion rights in question, but President Clinton’s more liberal appointees seem more likely to support those unenumerated rights.
Constitutionalizing Public Policies
The discovery of new rights under the Ninth Amendment creates a difficulty for democracy. It removes questions about value conflicts from the arena of democratic politics and puts them under the
Essential Facts and Information you need to learn for our tests and assignments;
1. Civil Liberties are in the bill of rights, the first 10 amendments to the constitution. These are known as negative freedoms. The negative part means that the government, national , state, and local cannot lesson rights that you have ,which are specified in the bill of rights. In other words they cannot take them away without a valid reason. The court allows the government from time to time to limit rights but they must have reasonable grounds for doing this. There must be a rational state purpose for these restrictions. You have the right to free speech, freedom of association, religious rights, a free press, privacy rights, trial rights, and many other rights enumerated in the bill of rights and further defined by the Supreme court. These rights have been defined by the courts throughout are long judicial history. read this link to examine the full range of rights you have in the bill of rightsThe Bill Of Rights
2. History of Civil Liberties- From the founding of our country we had dual rights. This means that you had protections from state power that were different from protections from national power. This means that if you were living in 1845 in Minnesota your rights were protected from state law. If you published a newspaper according to state law they could censor your publication if you wrote articles that were libelous or if you made untrue statements about public officials. The US constitution allows publishers to publish without any censorship. But this is the problem , the US constitution did not apply to state publishers . The prior restraint clause applied only to National Laws. The US government did not pass this Minnesota Law restricting publications , so the constitution was not applicable in this case. So the national government had restrictions on their laws and state governments had a different set of restrictions on their laws under their respective constitutions.
3. Selective Incorporation- Something happened to change the status of dual rights in America. The due process clause of the 14th amendment passed in 1868 had changed the equation. The amendment states the the States cannot deny due process rights. This is the first time that the constitution could possibly limit state power. The clause mentions that the States cannot deny life , liberty, or property without due process. You are entitled to a hearing if you claim your due process rights were arbitrarily removed. Some scholars and Judicial experts claimed that the bill of rights applied since life, liberty, and property were the same as the bill of rights. The courts disagreed with this interpretation and clearly stated that the due process clause and the bill of rights did not in any way restrict state laws and actions. After many years the Supreme court changed its mind and stated that the bill of rights apply as protections against all state laws and actions. Now the bill of rights are honored by all states because they have to. see the link on selective incorporation This process of the supreme court ruling that the states had to honor certain rights took place over a long period of time and included many different rulings over a long span of time. See the link below for an explanation.
what is selective incorporation?
another link another explanation selective incorporation explained again
4. Civil Liberties only apply to governmental actions, therefore you can’t sue persons or organizations not part of a government. We have these rights because the anti-federalists wanted to protect persons from abuses from questionable government actions and laws. These protections only protected you from arbitrary intrusions originating from the national government. The states had their own civil liberties created in their constitutions. You couldn’t assert national rights unless you were injured by a federal law or actions. link-read a summary of the Barron v. Baltimore case which clearly states the law of the land before the states had to follow the provisions in the constitution.
Barron Case Summary
5. Religious Freedom-Religious Freedom
A conflict in rights- some constitutional provisions are in conflict with other provisions as well as clashing with state laws. A clear example of this conflict is reflected in the (free exercise of religion clause), you have a right to practice your religious beliefs but what if it causes harm to family members in violation of state law? If a mother doesn’t get help for a sick child who needs immediate medical attention and opts out for prayer instead of medical attention, then the law parental neglect laws override her right to practice her religious beliefs. So rights are not absolute, they can be taken away if one neglects a child for religious reasons.
6. Rights are relative not absolute-There can be a conflict between freedom v. order or freedom v. equality that presents itself for judicial review. This means that the court can take away rights when they conflict with health and safety laws, or some national laws. You have a right to engage in political speech, in some cases you need to get a permit from the city if you anticipate a large gathering at your event. Let’s say that you plan to speak about the necessity for violence and advocate for violence. If it is immanent that violence probably will occur then your right can be denied by the courts or by city officials. There has to be a high probability that violence will occur before the courts will grant a restraining order. So rights are relative and can be taken away under certain circumstances involving the importance of order over freedom.
7. Court Standards-The courts want public officials to clearly understand the rights you possess so that they are not arbitrarily removed. In many rulings the court will set up a standard that applies to the right in question. It is similar to a checklist of conditions that must be met before a right is infringed upon. Let’s give an example of standards outlined by the supreme court. First read this link to find the obscenity standard in the miller case What constitutes Obscenity .
Another standard-Political speech- When should public officials and law enforcement officials ban provocative speech that might elicit a violent reaction? The court had to articulated a standard or test to clarify what they should do as a policy.
political speech and violence standard
Use the lecture and link to answer these question.
1. Why are civil liberties considered negative?
2, Go to the bill of rights and list at least 10 civil liberties?
3. What is a supreme court standard? Use the Miller case or the Brandenburg case for your explanation of one of these standards.
4. Briefly explain how we moved from dual federalism to a uniform system of rights? This has to do with the 14th amendment due process clause. use the selective incorporation link to answer this question.
5. What if your neighbor takes away one of your liberties. Is this a constitutional violation or some other kind of violation? hint-constitutional rights are a relationship between the government and persons.
6. Is the free exercise of religion clause which allows all of us to practice our religion without interference from government. There are however some exceptions. Can you find in the lecture 1 exception?
7. Explain how the Religious Freedom Restoration Act expands the free exercise clause. see the link in the lecture.
8. The court can take away some civil liberties when there is a value conflict. Can you name the values that conflict when this happens?
9. What early political party wanted a bill of rights during the ratification debates?
Out of all the civil liberties you are entitled to, which right is most important to you and why?
1. Due process clause in the 14th amendment allowed the national government to start to compel the states to follow some provisions in the bill of rights. What was the first amendment in the bill of rights that the courts stated the states had to observe?
2. How does the right to privacy protect women in terms of state law?
3. Why are most rights subject to supreme court review?
4. If I put an election sign on my lawn that is removed by my neighbor. then can I sue my neighbor for a civil liberties violation?
5. The right to engage in political speech during a demonstration or gathering is a very complete right that is rarely interfered with. When can the court or public officials limit political speech?