Explain why issues of constitutional individual rights or civil liberties have become more complex in contemporary times

Overview: Chapter 4

Civil Liberties: Protecting Individual Rights 

Chapter Goals
The chapter addresses the following goals:

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  • Explain why issues of constitutional individual rights or civil liberties have become more complex in contemporary times.
  • Detail the development of selective incorporation as it relates to the Fourteenth Amendment and what it means for individual rights in the states.
  • Trace the evolution of the Supreme Court’s interpretation of the right of free expression through both 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.
  • 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. Detail the protections encountered at various stages of the criminal justice system, from the suspicion phase through appeal.
  • Describe the changes that the war on terrorism has brought to the protection of individual rights.
  • Summarize the role of the courts in a free society.

Focus and Main Points
The author focuses on civil liberties issues in this chapter. He examines a range of specific individual rights and their evolution over time. These rights include freedom of speech, religion, and privacy. However, these rights are constantly being balanced against competing individual rights and society’s collective interests, making these increasingly complex and important in contemporary American politics.

The main points of this chapter are as follows:

  • Freedom of expression is the most basic of democratic rights, but like all rights, it is not unlimited.
  • “Due process of law” refers to legal protections (primarily procedural safeguards) designed to ensure that individual rights are respected by government.
  • Over the course of the nation’s history, Americans’ civil liberties have been broadened in law and more fully protected by the courts. Of special significance has been the Supreme Court’s use of the Fourteenth Amendment to protect 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 a central role and is the institution that is typically most protective of civil liberties.

Chapter Outline
I.   The Bill of Rights, the Fourteenth Amendment, and Selective Incorporation

  1. Freedom of Expression
  2. Free Speech
    B.   Free Assembly
    C.   Press Freedom and Libel Law

III.   Freedom of Religion

  1. The Establishment Clause
    B.   The Free-Exercise Clause
  2. The Right to Bear Arms
  3. The Right of Privacy
  4. Abortion
    B.   Consensual Sexual Relations among Same-Sex Adults
  5. Rights of Persons Accused of Crimes
  6. Suspicion Phase: Unreasonable Search and Seizure
    B.   Arrest Phase: Protection against Self-Incrimination
    C.   Trial Phase: The Right to a Fair Trial
      1. Legal Counsel and Impartial Jury
      2. The Exclusionary Rule
      3. Sentencing Phase: Cruel and Unusual Punishment
        E.   Appeal: One Chance, Usually
        F.   Crime, Punishment, and Police Practices

VII.   Rights and the War on Terrorism

  1.   Detention of Enemy Combatants
    B.   Surveillance of Suspected Terrorists

VIII.   The Courts and a Free Society

Chapter Summary
The Bill of Rights was added to the Constitution shortly after its ratification. These amendments guarantee certain political, procedural, and property rights against infringement by the national government.

The guarantees embodied in the Bill of Rights originally applied only to the national government. Under the principle of selective incorporation of these guarantees using the Fourteenth Amendment, the courts extended them to state governments, though the process was slow and uneven. In the 1920s and 1930s, First Amendment guarantees of freedom of expression were given protection from infringement by the states. The states continued to have wide discretion in criminal proceedings until the early 1960s, when most of the fair-trial rights in the Bill of Rights were given federal protection.

Freedom of expression is the most basic of democratic rights. People are not free unless they can freely express their views. Nevertheless, free expression may 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 recent decades, however, the courts have protected a wide range of free expression in the areas of speech, press, and religion. They have also established a right of privacy, which in some areas, such as abortion, remains a source of controversy and judicial action.

Due process of law refers to legal protections that have been established to preserve individual rights. The most significant form of these protections consists of procedures designed to ensure that an individual’s rights are upheld (for example, the right of an accused person to have an attorney present during police interrogation). A major controversy in this area is the breadth of the exclusionary rule, which bars the use in trials of illegally obtained evidence.

The war on terrorism that began after the attacks on September 11, 2001, has raised new issues of civil liberties, including the detention of enemy combatants, the use of harsh interrogation techniques, and warrantless surveillance. The Supreme Court has not ruled on all such issues but has generally held that the president’s war-making power does not include the authority to disregard provisions of statutory law, treaties (the Geneva Conventions), and the Constitution.

Civil liberties are not absolute but must be judged in the context of other considerations (such as national security or public safety) and against one another when different rights 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 is usually more protective of civil liberties than are elected officials or popular majorities.