Rights, Liberties, and Privacy
by Kayla Blackburn
Protections in the Constitution
ex post facto law-retroactive criminal law, increasing punishment after crime committed, lessing the proof necessary to convict for a crime after, prosecution of crime after the statute of limitation expired; does not prevent the retroactive application of laws that work to the benefit of an accused person
bill of attainder-legislative acts inflicting punishment, deprivation of property without trial
Explanation of Clauses
- due process-no person shall "be deprived of life, liberty, or property, without due process of law
- establishment-prohibits the government from "establishing" a religion
- free exercise-protects right to freely exercise one's religion
Free Speech: How Far Does it Stretch?
Free Speech Tests
- three part test-a law must have a secular legislative purpose, mustn't advance or prohibit religion, and must avoid excessive government entanglement with religion; referred to as the Lemon Test
- endorsement test-put forth by Justice Sandra Day O'Connor, who believes the establishment clause forbids governmental practice that a reasonable observer would view as endorsement, even if there is no coercion
- preferentialist test-Constitution prohibits favoritism but not not prohibit aid to all religions, as supported by conservative justices while liberals support a strict separation
- bad tendency test-speech that corrupts society leads to crime
- clear and present danger test-government can only interfere if words uttered create a clear and present danger, like speech leading to riots, destruction of property, or corruption of elections
- preferred position doctrine-use of words and pictures should rarely if ever be curtailed because free speech is essential to democracy
Protected Free Speech
- free to believe whatever we wish
- can not be punished for beliefs or interfere with freedom of conscience
- speech can not be exposed to government restraint as action
Judges are most suspicious of prior restraint, and censorship imposed before a speech is made, published in a newspaper, or shown in a motion picture, as they only approved prior restraint in relation to military and national security matters. Laws that are so vague that people don't know if speech would violate them, hence stifling speech, are void. The legislatures can't pass laws that impinge on the first amendment freedoms if there are other means available, as least drastic means. Laws need to be content-neurtal or viewpoint-nuetral, so they apply to all kinds of speech and to all views, more likely to be found constitutional.
Limits on Obscenity
Free press: Do They Have the Right to Know?
Free Press vs. Fair Trials and Due Process
Reporters describe crime in vivid details, possibly influencing public opinion and making it hard to find a panel of impartial jurors.
Protections of Other media
- In 1965, the Court struck down an act requiring postmasters to detain foreign mailings with communist propaganda, and government censorship of mail is unconstitutional.
- Religious and political pamphlets, leaflets, and handbills have been historic weapons in defense of liberty, found to be constitutionally protected.
- Plays, concerts, and revues are also entitled to constitutional protection.
- Broadcasting receives the least first amendment protection, since federal funds are distributed to commercial broadcasts and the FCC regulates them and can levy taxes.
Freedom of Assembly
Local Rules on Assembly
Right to Privacy
The right to privacy is not stated specifically in the Constitution, but it is the Supreme Court's responsibility to decide the constitutionality of a law or government action, as the Supreme Court doesn't establish laws on privacy but uses a case-by-case approach, since it is a living document that often reflects public opinion.
The majority of justices on the Supreme Court believe the right to privacy is a basic human right, as supported by the 1st Amendment, 4th Amendment, 5th Amendment, 9th Amendment, and 14th Amendment.
Supreme Court Rulings
Stanley v. Georgia (1969) involved state laws prohibiting possession of obscene material. Federal and state agents obtained a warrant to search Stanley's home for evidence of bookmaking activity, but instead of finding evidence of bookmaking, the agents found films of obscene footage. Stanley was arrested for having them in his possession. Stanley argued that he has the right to read what he pleases, and Georgia argued using the court decision regarding Roth v. US verdict that Stanley was not protected and could be prosecuted. The Supreme Court ruled that the Constitution does protect a person's right to receive information without regard to its social worth.
Roe v. Wade (1973) involved a Texas law enforcement that attempting to or procuring an abortion is illegal. A pregnant single woman, Roe, brought a class action challenging the constitutionality of the law, and a separate lawsuit was brought by an unpregnant married couple, Does, also challenging. A physician, Hallford, with two state abortion prosecutions pending also brought a suit. The Supreme Court ruled that Roe could sue, but Does and Hallford could not, as the Texas law violates the Due Process Clause of the Fourteenth Amendment, which protects state action against the right of privacy, including a woman's qualified right to terminate her pregnancy. The Supreme Court ruled that for the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman's attending physician. For the stages subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. The Texas criminal abortion statutes as is are unconstitutional.
Bowers v. Hardwick (1986) involves a Georgia statute that criminalized sodomy, because a bartender for a gay bar, Michael Hardwick was arrested for having oral sex with his partner in his home. The charges were dropped but Hardwick attempted to have the sodomy law declared unconstitutional. The Supreme Court ruled that the Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Against a background ins which many states have criminalized sodomy and still do, to claim that a right to engage in such conduct is deeply rooted in US history and tradition or implicit int he concept of ordered liberty is, at best, facetious. There should be great resistance to expand the reach of the due process clauses to cover new fundamental rights. Otherwise, the judiciary necessarily would take upon itself further authority to govern the country without constitutional authority, claimed right in this case falls far short of overcoming this resistance. The fact that homosexual conduct occurs in the privacy of the home does not affect the result, and sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws.
Lawrence v. Texas (2003) involved a Texas law forbidding a man from engaging in deviant sexual intercourse with another individual of the same sex. The defendants were caught when police entered the home in response to a reported weapons disturbance. The Supreme Court considered whether petitioners' criminal convictions under the Texas homosexual conduct law, which criminalizes sexual intimacy by same-sex couples but not identical behavior by different-sex couples, violate the 14th Amendment guarantee of equal protection of laws, and whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the 14th Amendment, resulting in consideration of the overruling of Bowes v. Hardwick (1986). The Supreme Court ruled that the Texas homosexual conduct law violates the privacy of homosexuals under the 14th Amendment. Convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the 14th Amendment.
Right to Privacy
4 States of Privacy
United States Citizenship
The government may take property through eminent domain, as established by the 5th Amendment, which occurs when private property is taken for public use with fair compensation, the first provision of the Bill of Rights to be enforced as a limitation on state government and national government. Regulatory takings are when the government taking of property is so extensive that government is deemed to have taken it through eminent domain.
Equal Rights Under Law
Equality Among Minorities
Asian Americans live chiefly in western states as a model minority facing widespread prejudice, discrimination, and equal opportunity barriers. Chinese Americans were the 1st Asians to live in the United States, beginning in 1847 to work on mines, railroads, and farms. They seldom tried to assimilate, resulting int Chinatowns and ethnic enclaves. Japanese Americans first migrated to Hawaii in the 1860s and California in the 1880s, later organizing Japanese and Korean Exclusion League. Their children are often excluded from neighborhood schools, and laws against land ownership and eligibility to become citizens exist. Internment occurred in WWII, and property was confiscated and sold while businesses, jobs, and incomes were lost. Koreans also lack housing and jobs with a growing middle class.
More than half of the Native Americans live on or near reservation, and more than 550 federally recognized tribes exist with 226 in Alaska, speaking a total of 200 different languages. The "nations" were not fully sovereign, as they are ruled by separate people with power to regulate their own internal affairs subject to congressional authorization. The Natives are citizens with the right to vote, and they have the same rights as any other American off reservation. The Bureau of Indian Affairs of the Department of Interior administers benefits that they are entitled to by law. The assimilation policy from 1887-1932 had tribal government weaknesses, resulting in some dissolving and the federal government ruling. Many Natives live in poverty and have worse health than the rest of the population. They die earlier and suffer disproportionately from alcoholism, accidents, diabetes, and pneumonia. Many reservations continue to experience lots of unemployment, and they lack health care facilities, schools, decent housing, and jobs.