9.2 Constitutional principles and civil liberties

Constitutional principles and civil liberties form the bedrock of American democracy. These concepts, rooted in Enlightenment philosophy and English common law, shape the relationship between government and citizens, protecting individual rights and limiting state power.

The U.S. Constitution establishes key principles like popular sovereignty, limited government, and separation of powers. The Bill of Rights further safeguards personal freedoms, including speech, religion, and due process. Over time, these protections have expanded through legislation and court rulings.

Origins of constitutional principles

• Understanding the origins of constitutional principles provides a foundation for studying the U.S. Constitution and its impact on American government and society
• The principles that shaped the Constitution emerged from Enlightenment-era political philosophies and legal traditions

Natural rights philosophy

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• Asserts that individuals have inherent, inalienable rights that exist independently of government
• Influenced by the ideas of John Locke, who argued that people have natural rights to life, liberty, and property
• Holds that the purpose of government is to protect these natural rights and that government derives its legitimacy from the consent of the governed

Social contract theory

• Suggests that individuals agree to surrender some of their natural rights to a government in exchange for the protection of their remaining rights
• Developed by philosophers such as Thomas Hobbes, John Locke, and Jean-Jacques Rousseau
• Emphasizes the idea that government authority is based on the consent of the governed and that people have the right to alter or abolish government if it fails to fulfill its obligations

Influence of English common law

• The English legal system, based on precedent and the protection of individual rights, heavily influenced American legal thought
• Key documents such as the Magna Carta (1215) and the English Bill of Rights (1689) established principles like due process and the rule of law
• The American colonists drew upon English common law traditions when developing their own legal systems and constitutions

Constitutional principles

• The U.S. Constitution is built upon several key principles that define the structure and function of American government
• These principles aim to create a balanced, limited government that protects individual rights and freedoms

Popular sovereignty

• The idea that ultimate political power resides with the people, who have the right to create, alter, or abolish their government
• Reflected in the Constitution's opening phrase, "We the People," and in the provision for amending the Constitution
• Ensures that government derives its authority from the consent of the governed

Limited government

• The concept that government power is restricted by the Constitution and the rule of law
• The Constitution grants specific, enumerated powers to the federal government, reserving all other powers to the states or the people
• Protects individual rights by preventing government overreach and abuse of power

Separation of powers

• The division of government authority among three distinct branches: legislative, executive, and judicial
• Each branch has its own specific powers and responsibilities, as outlined in Articles I, II, and III of the Constitution
• Prevents the concentration of power in any single branch, reducing the risk of tyranny

Checks and balances

• A system in which each branch of government has the ability to limit or "check" the power of the other branches
• Examples include the president's veto power, Congress's power to override a veto, and the judiciary's power to review the constitutionality of laws
• Ensures that no single branch becomes too powerful and helps maintain a balance of power

Federalism

• The division of power between the national (federal) government and state governments
• The Constitution grants specific powers to the federal government (enumerated powers), while reserving other powers to the states (reserved powers)
• Allows for a balance between national unity and state-level diversity and experimentation

Judicial review

• The power of the courts, particularly the Supreme Court, to review and invalidate laws and government actions that violate the Constitution
• Established by the Supreme Court in Marbury v. Madison (1803)
• Serves as a crucial check on the legislative and executive branches, ensuring that they act within the bounds of the Constitution

Bill of Rights

• The first ten amendments to the U.S. Constitution, added in 1791 to protect individual rights and limit government power
• Reflects the influence of natural rights philosophy and the social contract theory
• Includes protections for freedom of speech, religion, and the press, as well as due process rights and protections against unreasonable searches and seizures

First Amendment freedoms

• Protects freedom of religion, speech, press, assembly, and petition
• Prevents government from establishing an official religion or prohibiting the free exercise of religion
• Ensures that individuals can express their opinions, criticize the government, and gather peacefully to advocate for change

Second Amendment rights

• Protects the right to keep and bear arms
• Subject to ongoing debate about the scope of this right and the government's ability to regulate firearms
• Often discussed in the context of self-defense, hunting, and the role of an armed citizenry in preventing tyranny

Fourth Amendment protections

• Guards against unreasonable searches and seizures by the government
• Requires probable cause and a warrant for most searches, with some exceptions (exigent circumstances, plain view)
• Helps protect individual privacy and prevents arbitrary government intrusion into people's lives and property

Fifth Amendment rights

• Provides several due process protections for individuals accused of crimes
• Includes the right to remain silent (protection against self-incrimination), the right to a grand jury indictment for capital crimes, and protection against double jeopardy
• Prohibits the government from taking private property for public use without just compensation

Sixth Amendment rights

• Guarantees a speedy and public trial, an impartial jury, and the assistance of counsel for criminal defendants
• Ensures that the accused are informed of the charges against them and have the opportunity to confront witnesses
• Helps protect against arbitrary or abusive prosecution and ensures fair criminal proceedings

Eighth Amendment protections

• Prohibits excessive bail, fines, and cruel and unusual punishments
• Reflects the principle of proportionality in criminal justice, ensuring that punishments are not excessively harsh or disproportionate to the crime
• Helps prevent abuses in the criminal justice system and protects the dignity of those accused or convicted of crimes

Incorporation of the Bill of Rights

• The process by which the Supreme Court has applied the protections of the Bill of Rights to state governments through the Fourteenth Amendment's Due Process Clause
• Initially, the Bill of Rights was interpreted as applying only to the federal government, not to the states
• Incorporation has expanded civil liberties protections and ensured that states must also respect individual rights

Barron v. Baltimore (1833)

• Supreme Court ruled that the Bill of Rights applied only to the federal government, not to state governments
• Set the stage for later debates about the application of the Bill of Rights to the states
• Reflected the concept of dual citizenship, in which individuals were citizens of both their state and the United States, with each level of government having its own set of rights and protections

Selective incorporation

• The process by which the Supreme Court has gradually applied specific provisions of the Bill of Rights to the states on a case-by-case basis
• Began in the early 20th century and has continued to the present day
• Has resulted in most, but not all, of the Bill of Rights being applied to the states

Gitlow v. New York (1925)

• The Supreme Court ruled that the First Amendment's protection of freedom of speech applied to the states through the Fourteenth Amendment's Due Process Clause
• Marked the beginning of the selective incorporation process
• Expanded free speech protections and limited states' ability to restrict individual expression

Near v. Minnesota (1931)

• The Supreme Court applied the First Amendment's protection of freedom of the press to the states
• Struck down a Minnesota law that allowed for the prior restraint of publications deemed "malicious, scandalous, and defamatory"
• Reinforced the importance of a free press in maintaining democratic accountability and informed public discourse

Mapp v. Ohio (1961)

• The Supreme Court applied the Fourth Amendment's protection against unreasonable searches and seizures to the states
• Established the exclusionary rule, which prohibits the use of evidence obtained through unconstitutional searches in state criminal proceedings
• Strengthened individual privacy protections and deterred police misconduct

Freedom of religion

• The First Amendment protects the free exercise of religion and prohibits the government from establishing an official religion
• Ensures that individuals can practice their faith without government interference or favoritism
• Reflects the Founders' commitment to religious pluralism and the separation of church and state

Establishment Clause

• Prohibits the government from establishing an official religion or favoring one religion over others
• Prevents the government from providing direct financial support to religious institutions or endorsing religious beliefs
• Ensures government neutrality in matters of religion and protects against the entanglement of church and state

Free Exercise Clause

• Protects the right of individuals to practice their religion without government interference
• Prevents the government from singling out specific religious practices for prohibition or punishment
• Ensures that individuals can follow their religious beliefs and engage in religious practices, subject to certain limitations (compelling state interest, general applicability)

Separation of church and state

• The principle that government and religion should be kept separate to ensure religious freedom and prevent government favoritism or entanglement
• Derived from the Establishment Clause and the writings of Thomas Jefferson and James Madison
• Helps maintain government neutrality in matters of religion and protects the autonomy of religious institutions

Religious accommodations

• Government efforts to accommodate religious practices and beliefs, particularly when general laws or policies may burden religious exercise
• Examples include allowing religious exemptions to general laws (conscientious objectors, religious dress in the workplace) and providing alternative options for religious minorities (kosher meals in prisons)
• Reflects a balance between the Establishment Clause and the Free Exercise Clause, ensuring that the government does not unduly burden religious practice while maintaining neutrality

Freedom of speech

• The First Amendment protects the right to express opinions, ideas, and beliefs without government censorship or punishment
• Ensures that individuals can engage in public discourse, criticize the government, and advocate for change
• Subject to certain limitations, such as speech that incites imminent lawless action or defames others

Protected vs unprotected speech

• Some forms of speech are protected by the First Amendment, while others are not
• Protected speech includes political speech, artistic expression, and most forms of peaceful advocacy
• Unprotected speech includes obscenity, defamation, fighting words, and speech that incites imminent lawless action

Content-based restrictions

• Government regulations that restrict speech based on its content or subject matter
• Generally presumed unconstitutional, as they target the message or idea being expressed
• Must be narrowly tailored to serve a compelling government interest to be upheld (strict scrutiny)

Time, place, and manner restrictions

• Government regulations that restrict when, where, or how speech can occur, but not the content of the speech itself
• Examples include noise ordinances, permit requirements for public demonstrations, and restrictions on speech in specific locations (schools, courtrooms)
• Must be content-neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communication

Symbolic speech

• Nonverbal actions or displays that convey a political message or idea
• Examples include burning the American flag, wearing armbands to protest a war, and displaying controversial symbols
• Protected by the First Amendment, subject to the same limitations as verbal speech

School speech

• Student speech in public schools is protected by the First Amendment but subject to greater restrictions than adult speech in other contexts
• Schools can regulate speech that substantially disrupts the educational process or infringes upon the rights of others (Tinker v. Des Moines, 1969)
• Schools have more leeway to regulate school-sponsored speech (Hazelwood v. Kuhlmeier, 1988) and speech that promotes illegal drug use (Morse v. Frederick, 2007)

Freedom of the press

• The First Amendment protects the right of the media to gather and publish news and information without government censorship or interference
• Ensures that the press can serve as a watchdog on government activity and inform the public about matters of public concern
• Subject to certain limitations, such as defamation, privacy, and national security concerns

Prior restraint

• Government censorship or suppression of speech before it is published or broadcast
• Presumed unconstitutional, as it prevents speech from occurring rather than punishing it after the fact
• Permitted only in exceptional circumstances, such as to prevent the publication of troop movements during wartime

Libel and defamation

• False statements that harm an individual's reputation or standing in the community
• Libel refers to written defamation, while slander refers to spoken defamation
• Public figures must prove "actual malice" (knowledge of falsity or reckless disregard for the truth) to prevail in a defamation lawsuit (New York Times v. Sullivan, 1964)

Reporter's privilege

• The right of journalists to refuse to disclose their confidential sources or information in court proceedings
• Not explicitly protected by the First Amendment, but recognized by some states through shield laws
• Helps maintain the independence of the press and encourages sources to come forward with information of public importance

Access to information

• The ability of the press and the public to obtain government records and attend government proceedings
• Supported by freedom of information laws, such as the federal Freedom of Information Act (FOIA)
• Ensures government transparency and accountability, though subject to exceptions for national security, privacy, and other concerns

Right to privacy

• The concept that individuals have a fundamental right to privacy and autonomy in their personal lives
• Not explicitly mentioned in the Constitution but derived from the penumbras and emanations of various constitutional provisions (Griswold v. Connecticut, 1965)
• Protects intimate decisions and activities from government interference, such as those related to marriage, procreation, and child-rearing

Griswold v. Connecticut (1965)

• The Supreme Court struck down a Connecticut law prohibiting the use of contraceptives, recognizing a constitutional right to privacy in the context of marriage
• Established the concept of "penumbras" and "emanations" of privacy rights stemming from various constitutional provisions
• Laid the foundation for future privacy rights cases, such as those related to abortion and same-sex relationships

Roe v. Wade (1973)

• The Supreme Court recognized a constitutional right to abortion as part of the right to privacy under the Fourteenth Amendment's Due Process Clause
• Established a trimester-based framework for balancing a woman's right to privacy with the state's interest in protecting potential life
• Sparked ongoing controversy and debate about the scope and nature of abortion rights

Planned Parenthood v. Casey (1992)

• The Supreme Court reaffirmed the core holding of Roe v. Wade but modified the legal framework for evaluating abortion regulations
• Replaced the trimester-based approach with the "undue burden" standard, which asks whether a regulation places a substantial obstacle in the path of a woman seeking an abortion
• Allowed for greater state regulation of abortion, particularly in later stages of pregnancy

Same-sex marriage

• The Supreme Court recognized a constitutional right to same-sex marriage as part of the fundamental right to marry (Obergefell v. Hodges, 2015)
• Built upon earlier cases that struck down laws criminalizing same-sex intimacy (Lawrence v. Texas, 2003) and federal non-recognition of same-sex marriages (United States v. Windsor, 2013)
• Reflected evolving social attitudes and the growing recognition of LGBTQ+ rights as civil rights issues

Rights of the accused

• The Constitution provides various protections for individuals accused of crimes, particularly in the Fourth, Fifth, Sixth, and Eighth Amendments
• These rights ensure fair treatment, due process, and protection against arbitrary or abusive government action in the criminal justice system
• Reflect the principle that individuals are innocent until proven guilty and that the government bears the burden of proving guilt beyond a reasonable doubt

Search and seizure

• The Fourth Amendment protects against unreasonable searches and seizures by the government
• Generally requires probable cause and a warrant for searches, with exceptions for exigent circumstances, plain view, and searches incident to arrest
• Exclusionary rule prohibits the use of evidence obtained through unconstitutional searches in criminal proceedings (Mapp v. Ohio, 1961)

Miranda rights

• The requirement that police inform suspects in custody of their Fifth Amendment right to remain silent and Sixth Amendment right to an attorney before interrogation (Miranda v. Arizona, 1966)
• Designed to protect against coerced or involuntary confessions and ensure that suspects are aware of their rights
• Statements obtained in violation of Miranda are generally inadmissible in court, subject to certain exceptions (public safety, impeachment)

Right to counsel

• The Sixth Amendment guarantees the right to the assistance of counsel in criminal proceedings
• Requires the government to provide an attorney for indigent defendants in felony cases (Gideon v. Wainwright, 1963) and misdemeanor cases resulting in imprisonment (Argersinger v. Hamlin, 1972)
• Ensures that defendants have access to legal representation and a fair opportunity to present a defense

Cruel and unusual punishment

• The Eighth Amendment prohibits cruel and unusual punishments, reflecting the principle of proportionality in criminal sentencing
• Prohibits punishments that are excessively harsh, degrading, or disproportionate to the offense
• Has been invoked to challenge the constitutionality of the death penalty, life sentences for juveniles, and prison conditions

Expanding civil liberties

• Civil liberties have been expanded over time through constitutional amendments, legislation, and judicial interpretation
• These expansions have sought to protect the rights of marginalized or disadvantaged groups and ensure equal treatment under the law
• Reflect evolving social norms and the ongoing struggle to realize the Constitution's promise of liberty and justice for all

Civil Rights Act of 1964

• Landmark legislation that prohibited discrimination based on race, color, religion, sex, or national origin in various contexts, including employment, education, and public accommodations
• Strengthened federal enforcement of civil rights and provided remedies for victims of discrimination
• Reflected the goals of the civil rights movement and the growing recognition of the need for federal action to address racial inequality

Americans with Disabilities Act

• Legislation that prohibits discrimination against individuals with disabilities in employment, public accommodations, transportation, and telecommunications
• Requires reasonable accommo