Chapter
15: Order and Civil Liberties
Synopsis
The Bill of Rights of the Constitution gives individuals
a wide range of civil liberties designed to protect them
against the power of the state. The interpretation of how
these civil liberties should be enforced has involved a
clash between government-imposed order and freedom. The
courts, especially the Supreme Court, have the power to
resolve societal controversies over values involving
civil rights. However, government at all levels can, and
does, create rights through laws written by legislatures
and regulations issued by bureaucracies.
The First Amendment of the Constitution protects
individuals from government laws that interfere with the
freedom of religion and freedom of expression. With
respect to religion, government has set out to establish
a wall of separation between church and state. The
Supreme Court has interpreted the establishment
clause in the First Amendment in such a way that
government is prevented from giving assistance to
religious institutions. Over the years, however, indirect
and incidental assistance of parochial schools has been
tolerated. Since the Supreme Court handed down its
decision in Lemon v. Kurtzman (1971), state
funding of religious programs must pass a stringent test
of noninterference with religion. The free exercise
clause of the First Amendment protects religious
beliefs but not the actions based upon those beliefs.
Thus government is allowed to regulate antisocial
behavior that stems from a constitutionally protected
right.
Freedom of expression is one of the vital characteristics
of a democratic system. The freedom of expression
clause of the First Amendment confers the right to
unrestricted public discourse that does not threaten
public order. The Supreme Court has defined the kinds of
behavior that constitute a threat to public order through
the clear and present danger test. Over the years
the Court has expanded the latitude of political
expression that does not present real danger to society.
Symbolic expression, such as wearing black
armbands to protest the Vietnam War, has been protected
by the Court. There are two noted exceptions to freedom
of speech. "Fighting words" are defined as utterances
designed to "inflict injury or tend to incite an
immediate breach of the peace," and are not subject to
First Amendment protection. Obscenity is also excluded
form constitutional protection.
The First Amendment also guarantees that government will
not interfere with the freedom of the press. There are
limitations on this freedom. Public officials or public
figures can institute a lawsuit against the press for
libel. The Sullivan case, however, established
that "actual malice" must be proved before libel is
upheld. Prior restraint, or censorship, is
permissible by the government under exceptional
circumstances that are not specified by the Court. As
demonstrated by the Ellsberg case, the Court takes a very
narrow view on what constitutes permissible grounds.
Another limitation on freedom of the press exists in the
conflict between the needs of law enforcement and those
of the free press.
Only with the passing of the Fourteenth Amendment did the
Bill of Rights become applicable to the states. The
incorporation of the individual guarantees in the Bill of
Rights under the due process clause of the Fourteenth
Amendment was a slow, painful process. The landmark
decision in Palko v. Connecticut (1937)
interpreted the due process clause to include only
"fundamental" rights. In the thirty years after Palko,
however, almost every aspect of the Bill of Rights
was accepted as fundamental right.
The incorporation of constitutional procedural safeguards
to be used by the states in criminal prosecution has
dramatically changed the American criminal justice system
in the last thirty years. In several decision, the
Supreme Court required states to provide trial by jury in
criminal cases, a lawyer to criminal defendants, the
right against self-incrimination through the Miranda
warnings, and freedom from unreasonable searches and
seizures through the exclusionary rule.
The Supreme Court has expanded the rights of individuals
beyond those explicitly enumerated in the Constitution.
For instance, the Court has asserted people's right to
privacy in making choices about contraception and
reproduction. The protection of a woman's decision to
have an abortion during the first three months of
pregnancy, granted by the Supreme Court in Roe
v. Wade (1973) was the most controversial
result of the extension of the right to privacy. Through
Webster v. Reproductive Health Services
(1989) and other recent decisions the Court has moved
down the road toward greater government control of
abortion policy. In addition, in 1986 the Court
restricted the right of privacy to only heterosexual
choices, thus placing homosexual choices outside
constitutional protection. Nonetheless, state-by-state
efforts to give homosexual commitments the same status as
heterosexual marriage continue to occur.
With the two new appointments by Bill Clinton, Ruth Bader
Ginsburg and Stephen Breyer, the Court may become more
moderate in coming years. The judicial branch will
continue to play a major role in balancing freedom and
order.
- Return
to Top ©1998 by Houghton
Mifflin Company. All rights reserved.
|
Summary |
|
|
-
|
|
