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Civil Liberties: Protecting Individual Rights

The chapter begins with the Creighton case and the FBI's use of a "warrantless" search. The case, regardless of its outcome, points out the continuing relevance of civil liberties within the framework of the U.S. Constitution. These are major chapter points:

  • Although the most basic of democratic rights, freedom of expression is not unlimited. Free expression recently has been strongly supported by the Supreme Court.
  • "Due process of law" refers to procedural safeguards designed to ensure that individual rights are respected by the government.
  • During the last half century particularly, the civil liberties of individual Americans has been substantially broadened in law and given greater protection from action by all levels of government. Of special significance has been the Supreme Court's use of the Fourteenth Amendment to protect these individual rights from action by state and local governments.
  • Individual rights are constantly being weighed against the demands of majorities and the collective needs of society. All political institutions are involved in this process, as is public opinion, but the judiciary plays the central role in it and is the institution that is most partial to the protection of civil liberties.

In their search for personal liberty, Americans added the Bill of Rights to the Constitution shortly after its ratification. These amendments guarantee certain political, procedural, and property rights against infringement by the national government. The chapter reviews these rights in four categories: freedom of expression, freedom of religion, the right of privacy, and rights of persons accused of crimes.

Freedom of expression is the most basic of democratic rights; people are not truly free unless they can express their views without hindrance. Nevertheless, free expression might conflict with the nation's security needs during times of war and insurrection. The courts at times have allowed government to limit expression substantially for purposes of national security. In addition, speech may not lead to a "clear and present danger" or defame character through libel or slander. Also, obscenity is not protected by the Constitution. The problem is defining what is obscene; the doctrine of "community standards" is the main testing criterion.

Regarding freedom of religion, the Supreme Court has consistently interpreted the establishment clause to mean that government may not favor one religion over another or directly support religion per se. However, the Court has allowed government involvement in religion so long as it is not "excessive." The so-called "wall of separation" between church and state outlined by the Court, especially the ruling that organized prayer is not allowed in public schools, has long sparked controversy. The Court has restricted the free-exercise clause only in special circumstances.

Unlike most other individual rights, the right of privacy is not specifically listed in the Constitution. Instead, the Supreme Court identified the right in Griswold v. Connecticut (1965). The right of privacy was the basis for the court's decision in Roe v.Wade (1973), which guaranteed a woman's right to have an abortion during the first trimester of pregnancy. Recent court rulings have allowed some restrictions on abortion while protecting the fundamental right. Americans are sharply divided on the issue of abortion, and the controversy over it will likely continue.

During the 1960s, the Supreme Court expanded protection for the persons accused of crimes (Miranda rights, exclusionary rule). More recently, however, the Court has tightened these protections somewhat (restriction of appeals, exceptions to the exclusionary rule) within the context of a "law and order" public mood. The principle of selective incorporation has extended protection for the rights of the accused against state and local action. The guarantees embodied in the Bill of Rights originally applied only to the national government. By incorporating these guarantees into the Fourteenth Amendment, the courts extended them to state governments, though slowly and unevenly. The states, however, continued to have wide discretion in criminal proceedings until the early 1960s, when most of the fair-trial rights in the Fourth through Eighth Amendments were given federal protection.

"Due process of law" refers to legal protections that have been established to preserve individual rights. Due process is of two kinds: procedural and substantive. The former consists of procedures or methods (for example, the right of an accused person to have an attorney present during police interrogation) designed to ensure that an individual's rights are respected; the latter consists of legal proceedings that lead to reasonable and fair results (for example, the conditions of imprisonment of an individual convicted of a crime).

Civil liberties are not absolute but must be balanced against other considerations (such as national security or public safety) and against one another when rights come into conflict. The judicial branch of government, particularly the Supreme Court, has taken on much of the responsibility for protecting and interpreting individual rights. The Court's positions have changed with time and conditions, but the Court has generally been more protective of and sensitive to civil liberties than have elected officials or popular majorities.

Having read the chapter, you should be able to do each of the following:

Explain why issues of constitutional individual rights or civil liberties have become more complex in contemporary times.
Trace the evolution of the Supreme Court's interpretation of the right of free expression through the "early" and "modern" periods. Important concepts such as prior restraint, libel, and slander should also be understood. Discuss the extension of its guarantees to state governments through the Fourteenth Amendment.
Explain substantive due process. Outline the historical development of the federal judiciary's application of due process protections.
Review key Supreme Court decisions relating to the right of privacy.
Discuss the significance of the establishment and free-exercise clauses in relation to freedom of religion.
Explain how the rights of the accused have been protected through Supreme Court rulings.
Summarize the role of the courts in a free society.

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