THE EXERCISE OF JUDICIAL REVIEW: CIVIL LIBERTIES

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THE EXERCISE OF JUDICIAL REVIEWCIVIL LIBERTIES

• Topic 17

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The Bill of Rights

• Bill of Rights first ten Amendments to the
  Constitution
• Remember the circumstances in which a Bill of
  Rights was promised and the promise was then
  fulfilled.
• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.
• A well regulated militia, being necessary to the
  security of a free state, the right of the people
  to keep and bear arms, shall not be infringed.
• 3 No soldier shall, in time of peace be
  quartered in any house, without the consent of
  the owner, nor in time of war, but in a manner to
  be prescribed by law.

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The Bill of Rights (cont.)

• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no warrants shall issue, but upon
  probable cause, supported by oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be seized.
• No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a
  presentment or indictment of a grand jury, except
  in cases arising in the land or naval forces, or
  in the militia, when in actual service in time of
  war or public danger nor shall any person be
  subject for the same offense to be twice put in
  jeopardy of life or limb nor shall be compelled
  in any criminal case to be a witness against
  himself, nor be deprived of life, liberty, or
  property, without due process of law nor shall
  private property be taken for public use, without
  just compensation.

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The Bill of Rights (cont.)

• 6 In all criminal prosecutions, the accused
  shall enjoy the right to a speedy and public
  trial, by an impartial jury of the state and
  district wherein the crime shall have been
  committed, which district shall have been
  previously ascertained by law, and to be informed
  of the nature and cause of the accusation to be
  confronted with the witnesses against him to
  have compulsory process for obtaining witnesses
  in his favor, and to have the assistance of
  counsel for his defense.
• 7 In suits at common law, where the value in
  controversy shall exceed twenty dollars, the
  right of trial by jury shall be preserved, and no
  fact tried by a jury, shall be otherwise
  reexamined in any court of the United States,
  than according to the rules of the common law.
• 8 Excessive bail shall not be required, nor
  excessive fines imposed, nor cruel and unusual
  punishments inflicted.
• 9 The enumeration in the Constitution, of certain
  rights, shall not be construed to deny or
  disparage others retained by the people.
• 10 The powers not delegated to the United States
  by the Constitution, nor prohibited by it to the
  states, are reserved to the states respectively,
  or to the people.

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The Bill of Rights (cont.)

• Study Guide Questions
• What important democratic right is not
  mentioned anywhere in the Bill of Rights? Why do
  you think this important right is not included in
  the Bill of Rights?
• What two different kinds of rights are protected
  by different Amendments constituting the Bill of
  Rights? Which of the two kinds of rights
  probably presupposes a democratic or popular
  form of government, and which might be protected
  even under a non-democratic or non-popular form
  of government?

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Subject vs. Citizen Rights

• Subject/procedural rights
• Rights to have the law fairly and properly
  applied to you as a subject of the law.
• Such rights could well be protected in a
  non-democratic system, e.g., Britain in 1790.
• Primarily Amendments 4-8
• Citizen/Political rights
• Rights to participate in determining what the law
  shall be.
• The right to vote
• The right to try to influence representatives and
  (other) voters
• Freedoms of speech, press, assembly, and petition
• Amendment 1 Religion

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Citizen Rights

• Citizen rights are often characterized in this
  way
• present political minorities have the right to
  try to convert themselves into future political
  majorities by exercising the freedoms of speech,
  press, assembly, and petition.
• Justifications for such freedoms
• These freedoms are natural rights (?).
• Allowing the exercise of these freedoms defuses
  tendencies toward violent protest, rebellion, or
  revolution.
• The general exercise of these freedoms informs
  both other citizens and elected representatives
  and improves democratic self-government.
• Freedom of speech is not everyone shouting at
  once.
• A town meeting needs a presiding officer and
  rules of procedure.

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John Stuart Mill, On Liberty

• The last justification for political freedom was
  classically set out by the British philosopher
  John Stuart Mill in On Liberty (1859).
• Mill viewed political (and many other) beliefs or
  opinions as being, in considerable degree, either
  true or false.
• So Mill definitely was not relativist
  (everything is relative, everyones opinions
  are as good as anyone elses).
• But Mill was a skeptic (we can never know for
  sure whether our or others beliefs are true or
  false),
• He was also a utilitarian (institutions and
  practices should be evaluated on the basis of
  their utility), i.e.,
• the extent to which they promote human well-being.

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Mill, On Liberty (cont.)

• Suppose an attempt is made by government (or by
  social pressure or threats) to suppress the
  expression of dissenting (minority) opinions.
• Think of a jury in a criminal trial
• The initial opinions of the jurors (regarding the
  guilt of the defendant) can properly be thought
  of as either true or false (but we and they
  dont know for sure which is which).
• Suppose an initial straw vote shows the jurors
  are initially divided 10-2.
• There are three logical possibilities
• established/majority opinion
  is dissenting/minority opinion is
• (1) false true
• (2) true false
• (3) mixed mixed

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Mill, On Liberty (cont.)

• In (1), society or the criminal justice system
  clearly benefits from the expression of
  dissenting opinions,
• which may convert the dominant opinion from being
  false to be true,
• or convert the jury from a incorrect to a correct
  verdict (Twelve Angry Men).
• In (2), established opinion, even if true, tends
  to become mere dogma and its rational basis
  forgotten if is not occasionally challenged by
  (false) dissenting opinions.
• The valuable role of the devils advocate
  (avoid premature closure / group think,
  including in juries).
• In (3), free deliberation and the give and take
  of debate helps sort what opinions are true and
  what are false.

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First Amendment Freedoms

• Justice Oliver Wendell Holmes, Jr., spoke of the
  free market of ideas.
• While he opposed reading laissez-faire
  economics into the Constitution, he favored
  laissez-faire political speech.
• Having said all this, it remains difficult for
  courts, even if they endorse the Mill/Holmes
  theory, to apply it in particular cases.
• POLI 433 First Amendment Freedoms
  constitutional law
• Four problems (among others)
• the boundary between speech (protected from
  government regulation by the First Amendment) and
  action (not so protected)
• rights in conflict
• symbolic speech and
• freedom of speech implications of campaign
  finance laws.

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The Speech/Action Boundary

• I engage in a general abstract discussion or
  seminar concerning anarchism, communism, etc.
  implying the desirability of overthrowing the
  government
• This is clearly speech protected by the First
  Amendment.
• I use words to incite a mob to attack government
  property or officials.
• This is clearly incitement to riot, not protected
  by the First Amendment.
• Somewhere in between there is a boundary between
  protected speech and action that may be
  prohibited or punished by law.
• The same words, uttered in different
  circumstances, may have different consequences
  and thus different degrees of constitutional
  protection.

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The Clear and Present Danger Doctrine

• The Clear and Present Danger doctrine was a
  famous, but unsuccessful, attempt by the SC to
  cope with this problem.
• Important note difference between
• a constitutional clause (text from the
  Constitution) and
• a constitutional doctrine (devised by the SC to
  help it interpret a clause in the Constitution).
• The doctrine was introduced by Justice Holmes in
  his opinion for the court in the case of Schenck
  v. U.S. (1919)
• World War I anti-draft activity.
• Schenck was prosecuted for interfering with the
  draft.
• Note many precedents cited in the opinion (vs.
  McCulloch v. Maryland, etc.)

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Clear and Present Danger Doctrine (cont.)

• We admit that in many places and in ordinary
  times the defendants in saying all that was said
  in the circular would have been within their
  constitutional rights. But the character of every
  act depends upon the circumstances in which it is
  done. The most stringent protection of free
  speech would not protect a man in falsely
  shouting fire in a theatre and causing a panic.
  It does not even protect a man from an injunction
  against uttering words that may have all the
  effect of force. The question in every case is
  whether the words used are used in such
  circumstances and are of such a nature as to
  create a clear and present danger that they will
  bring about the substantive evils that Congress
  has a right to prevent. It is a question of
  proximity and degree. When a nation is at war
  many things that might be said in time of peace
  are such a hindrance to its effort that their
  utterance will not be endured so long as men
  fight and that no Court could regard them as
  protected by any constitutional right.
• The doctrine is not very operational it does
  little more than restate the problem.
• It was adopted by SC majorities in subsequent
  cases in which Holmes dissented.
• In Dennis v. U.S. (1951), it was invoked in both
  the Court and dissenting opinions.
• Dennis v. U.S. was effectively reversed a few
  years later in Yates v. U.S. (1957) and the clear
  and present danger doctrine was dropped.

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Other First Amendment Problems

• Rights in Conflict
• First Amendment Congress shall make no law
  abridging the freedom of the press.
• Sixth Amendment In all criminal prosecutions,
  the accused shall enjoy the right to a speedy and
  public trial by an impartial jury.
• U.S. courts are generally suspicious of prior
  restraint on the press. Hence
• elaborate jury selection procedures
• sequestered juries, etc.
• Contrary practice in Canada and U.K.
• Symbolic Speech
• Burning draft cards, U.S. flag, etc. Texas v.
  Johnson (1989)
• Does Money Talk?
• Freedom of speech implications of campaign
  finance laws.