1.3 Overview of Constitutional Rights and Liberties

Constitutional rights and liberties form the backbone of American democracy. The Bill of Rights and subsequent amendments protect individual freedoms from government overreach, setting the stage for a delicate balance between state power and personal liberty.

These protections have evolved through landmark Supreme Court cases and changing social norms. From free speech to privacy rights, the Court's interpretations have expanded civil liberties, shaping the contours of American society and individual freedoms.

Constitutional Rights and Liberties

The Bill of Rights

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• The Bill of Rights, consisting of the first ten amendments to the U.S. Constitution, was ratified in 1791 to protect individual liberties from government overreach
• The First Amendment protects freedom of speech, press, religion, assembly, and the right to petition the government for redress of grievances
• The Second Amendment addresses the right to bear arms, while the Third Amendment prohibits the quartering of soldiers in private homes during peacetime without the owner's consent
• The Fourth Amendment safeguards against unreasonable searches and seizures, requiring probable cause and warrants for most searches
• The Fifth Amendment provides due process rights, protects against self-incrimination and double jeopardy, and requires just compensation for private property taken for public use
• The Sixth Amendment ensures the rights of the accused in criminal prosecutions, including the right to a speedy and public trial, an impartial jury, and the assistance of counsel
• The Eighth Amendment prohibits excessive bail, fines, and cruel and unusual punishment

Subsequent Amendments Protecting Rights

• The Ninth Amendment clarifies that the enumeration of certain rights in the Constitution does not deny or disparage other rights retained by the people
• The Fourteenth Amendment, ratified in 1868, extends due process and equal protection rights to the states and defines citizenship
  • It has been used to incorporate most of the Bill of Rights protections against the states through the doctrine of selective incorporation
  • Notable cases applying the 14th Amendment include Brown v. Board of Education (school desegregation) and Obergefell v. Hodges (same-sex marriage)

Substantive vs Procedural Due Process

Substantive Due Process

• Substantive due process protects individuals from government interference with certain fundamental rights and liberty interests, such as privacy, marriage, and procreation
  • It is used to strike down laws that infringe upon these fundamental rights, even if the law's procedures are technically fair
  • The Supreme Court has recognized substantive due process rights in cases such as Griswold v. Connecticut (1965), striking down a ban on contraceptives, and Roe v. Wade (1973), protecting abortion rights
• Early in the 20th century, the Court used substantive due process to strike down economic regulations (Lochner v. New York), but later abandoned this approach (West Coast Hotel Co. v. Parrish)

Procedural Due Process

• Procedural due process ensures that the government follows fair procedures when depriving an individual of life, liberty, or property
  • It requires the government to provide notice and a fair hearing before taking action that could infringe upon an individual's rights
  • Key procedural due process cases include Gideon v. Wainwright (1963), establishing the right to court-appointed counsel in criminal cases, and Goldberg v. Kelly (1970), requiring a hearing before termination of welfare benefits
• Due process, guaranteed by the Fifth and Fourteenth Amendments, ensures that the government respects all legal rights owed to a person and balances the power of law of the land with the rights of the individual

Incorporation of the Bill of Rights

Selective Incorporation Doctrine

• Initially, the Bill of Rights only applied to the federal government, not to the states, as affirmed in Barron v. Baltimore (1833)
• The Fourteenth Amendment's Due Process Clause has been interpreted to "incorporate" most of the Bill of Rights protections against the states
• Incorporation occurs through the doctrine of selective incorporation, where the Supreme Court determines on a case-by-case basis which provisions of the Bill of Rights are fundamental and thus applicable to the states
  • Selective incorporation began with Gitlow v. New York (1925), applying the First Amendment's free speech clause to the states
  • Other notable selective incorporation cases include Mapp v. Ohio (1961) for the Fourth Amendment's exclusionary rule and Gideon v. Wainwright (1963) for the Sixth Amendment's right to counsel

Impact of Incorporation

• The incorporation doctrine has significantly expanded the scope of constitutional rights and liberties, ensuring that states cannot infringe upon these fundamental protections
  • It has led to the application of most Bill of Rights protections against state governments, not just the federal government
  • Incorporation has been crucial in cases involving free speech, criminal procedure, and privacy rights at the state level

Evolving Interpretation of Constitutional Rights

Landmark Supreme Court Cases

• Marbury v. Madison (1803) established the principle of judicial review, empowering the Supreme Court to interpret the Constitution and strike down laws that violate it
• Brown v. Board of Education (1954) overturned the "separate but equal" doctrine, holding that segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment
• Griswold v. Connecticut (1965) recognized a constitutional right to privacy, striking down a state law that prohibited the use of contraceptives by married couples
• Roe v. Wade (1973) further expanded the right to privacy to include a woman's decision to have an abortion, though this decision was later overturned in Dobbs v. Jackson Women's Health Organization (2022)
• Obergefell v. Hodges (2015) legalized same-sex marriage nationwide, finding that the fundamental right to marry is guaranteed to same-sex couples by the Due Process and Equal Protection Clauses of the Fourteenth Amendment

Changing Scope of Rights Over Time

• The Supreme Court's interpretation of constitutional rights has evolved over time, often in response to changing social norms and values
  • For example, the Court's approach to substantive due process shifted from striking down economic regulations (Lochner era) to protecting personal liberties (privacy cases)
  • Similarly, the Court's understanding of the Equal Protection Clause has expanded to prohibit discrimination based on race, gender, and sexual orientation
• As new cases come before the Court, the scope and application of constitutional rights continue to develop, shaping the contours of American civil liberties