Topic Selection, Outline + Initial Research TEXT BOOK: Greenberg, Edward S., and Benjamin I. Page. The Struggle for Democracy. Pearson, 2019. Topic 1 Main Idea: The influence of racism on black people Supporting Idea: 1.Blacks are treated unfairly in education 2.The disadvantage of blacks on the judiciary 3.Blacks and the economy Research, data, facts： Moore, Yunek. “Being Black Is Not a Crime: Yunek's Story of Police Brutality.” American Civil Liberties Union, American Civil Liberties Union, 13 Jan. 2020, www.aclu.org/blog/criminal-law-reform/reforming-police/being-black-not-crime-yuneks-st ory-police-brutality. Stanley, Clinton. “My Black Son Was Sent Home From First Grade Because of His Natural Hair.” American Civil Liberties Union, American Civil Liberties Union, 6 Dec. 2018, www.aclu.org/blog/racial-justice/race-and-inequality-education/my-black-son-was-sent-ho me-first-grade-because-his/. Brickner, Mike. “Black Lives Matter in Our Courtrooms Too.” American Civil Liberties Union, American Civil Liberties Union, 11 Aug. 2016, www.aclu.org/blog/racial-justice/race-and-criminal-justice/black-lives-matter-our-courtroo ms-too. Aclu. “D.C.'s Police Department Should Not Be Rewarded for Disproportionately Arresting Black Residents.” American Civil Liberties Union, American Civil Liberties Union, www.aclu.org/issues/racial-justice/race-and-criminal-justice/dcs-police-department-shouldnot-be-rewarded. Topic 2 Main Idea: Immigrants in the United States Supporting Idea: 1.Immigrants' Rights and Detention 2.The difficulty of being a citizen 3.Immigration laws and policies Research, data, facts： September 9, 2019, et al. “Padilla v. ICE.” American Civil Liberties Union, www.aclu.org/cases/padilla-v-ice. “Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention.” American Civil Liberties Union, 21 June 2018, www.aclu.org/report/code-red-fatal-consequences-dangerously-substandard-medical-care-i mmigration-detention. “State Legislature Passes Green Light Bill.” American Civil Liberties Union, www.aclu.org/press-releases/state-legislature-passes-green-light-bill. Cheng, Amrit. “The Fight to Kill Texas' Anti-Immigrant Law SB4 Is Not Over, but We Have the Constitution on Our Side.” American Civil Liberties Union, American Civil Liberties Union, 25 Sept. 2017, www.aclu.org/blog/immigrants-rights/state-and-local-immigration-laws/fight-kill-texas-ant i-immigrant-law-sb4-not/. 15 Listen to Chapter 15 on MyPoliSciLab Civil Liberties: The Struggle for Freedom CAMPUS SPEECH CODES AND FREE SPEECH • Stanford University enacted a speech code in 1990 that prohibits “personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.” The code was strongly opposed by Stanford’s eminent constitutional scholar Gerald Gunther, who claimed that hate speech should not be banned but vigorously rejected “with more speech, with better speech, with repudiation and contempt.” • Campus newspapers across the nation in 2001 refused to accept a paid advertisement from conservative activist David Horowitz in which he opposed reparations for slavery. Many of the handful of newspapers that ran the ad “Ten Reasons Why Reparations for Slavery Is a Bad Idea—and Racist Too” faced angry demonstrations, vandalism of their offices, and theft of the papers containing the offending ads. • During a class at the University of Michigan, a student argued that homosexuality could be treated with psychotherapy. He was accused of violating a campus rule against victimizing people on the basis of their sexual orientation. • At Southern Methodist University, a student was sentenced to work for 30 hours with minority organizations because, among other things, he sang “We Shall Overcome” in a sarcastic manner.1 • At Washington State University in 2005, a group of student protestors disrupted the performance of a play that poked fun at “political correctness” and that purposely offended 15.1 Identify civil liberties protections in the Constitution, p. 490 486 15.2 Trace the evolution of civil liberties in the nineteenth century, p. 490 15.3 Outline the liberties guaranteed by the Bill of Rights and their gradual application to the states by the Supreme Court, p. 494 15.4 Analyze how concerns about terrorism may affect civil liberties, p. 516 WHERE IS MY FREE SPEECH? Here a student at Texas A&M protests the university’s unwillingness, in her view, to fully celebrate Black History Month. Often in the United States, and particularly at colleges and universities, the struggles for civil liberties and civil rights have come into conflict. 487 MyPoliSciLab Video Series 1 The Big Picture Did you know that before the 20th century, someone could be arrested by their state government for protesting on a street corner? Author Edward S. Greenberg discusses the significance of the fourteenth amendment, which required states to enforce the Bill of Rights and the civil liberties it protects. The Basics What are civil liberties and where do they come from? In this video, you will learn about our First Amendment guarantees and about protections the Bill of Rights provides those accused of crimes. In the process, you’ll discover how our liberties have changed over time to reflect our changing values and needs. 3 4 In the Real World The American legal system and the American people have both struggled over whether the death penalty should be imposed in this country. In this segment, we’ll hear what citizens have to say about the death penalty. So What? Which civil liberty do you most value? Using the example of freedom of speech in the aftermath of 9/11, author Edward S. Greenberg admires the degree to which the government still values a person’s right to say whatever he wants, wherever he wants. 488 2 In Context Uncover the importance of civil liberties in a changing American society. University of Massachusetts at Boston political scientist Maurice T. Cunningham identifies the origins of our civil liberties and evaluates the clash between national security and civil liberties in a post 9/11 age. Think Like a Political Scientist What are some of the challenges facing political scientists in regards to civil liberties? In this video, University of Massachusetts at Boston political scientist Maurice T. Cunningham raises some of the thought provoking questions regarding civil liberties that have arisen during the last decade. 5 Watch on MyPoliSciLab 6 gays, Jews, Christians, Muslims, and others. Responding to critics, the university’s president suggested that the disruptive students had been simply expressing their First Amendment rights and were doing so in a responsible fashion. • At Brandeis University in 2007, a professor was formally admonished for racial harassment for analyzing for his students the origin of the derogatory term “wetback.” • At the University of Florida, the institution’s 2011 “Student Rights and Responsibilities” policy says that disciplinary actions can be taken against “organizations or individuals who upset the delicate balance of communal living . . .” without specifying what actions or speech might be subject to review. • In 2011, the University of Southern California’s policy on “Advertising, Promotion, and Literature Distribution” states that materials distributed by students may not have “derogatory language or material that is aimed at harming a specific person or an organization’s reputation.” Elsewhere USC says it is committed to vigorously preserving First Amendment rights. The college campus has become one of the most visible battlegrounds in the continuing struggle over the meaning of free speech in the United States, as traditional notions of liberty come into conflict with newer and equally valued notions of equal citizenship (or civil rights, to be discussed in the next chapter). Campus speech codes, today more likely to be called “harassment” or “diversity” policies, have been instituted at many colleges and universities across the country in an effort to rid campuses of speech that may offend women and members of various minority groups. Many civil libertarians, like Gerald Gunther, although protective of the rights of women and minority students to have a supportive learning environment, have fought hard against such codes in the service, they say, of free speech and a free society. While state and lower federal courts generally have sided with the civil libertarians—in 1995, the California Supreme Court agreed with Gunther’s position, saying that the Stanford code unconstitutionally restricts free speech rights under the First Amendment to the Constitution2 —colleges and universities have continued to revise and issue rules to reduce gender, sexual orientation, and minority harassment on campus and to provide a supportive environment for these students. These well-intentioned efforts, however, from the civil libertarians’ point of view, puts free speech at risk. Getting the balance right between liberties and equal rights is difficult, to say the least. The Supreme Court has not as yet taken a case that would settle the constitutional validity of such codes and rules and offer guidelines on where the proper balance might lie between the two. Thinking Critically About This Chapter This chapter is about civil liberties in the United States, with special attention on how historical developments, politics, and government policies have influenced the degree to which Americans can and do exercise their freedoms. Using the Framework You will see in this chapter how structural, political linkage, and governmental factors influence the meaning and practice of civic freedoms. Although the decisions of the Supreme Court are particularly important in determining the status of civil liberties at any particular moment in American history, you will learn how they are also the product of influences from a wide range of actors, institutions, and social processes. Using the Democracy Standard You will see in this chapter how the expansion of the enjoyment of civil liberties in the United States has been a product of the struggle for democracy and how civil liberties are fundamental to the democratic process itself. 489 15.1 15.2 civil liberties Freedoms found primarily in the Bill of Rights, the enjoyment of which are protected from government interference. habeas corpus 15.3 15.4 The legal doctrine that a person who is arrested must have a timely hearing before a judge. bill of attainder A governmental decree that a person is guilty of a crime that carries the death penalty, rendered without benefit of a trial. ex post facto law A law that retroactively declares some action illegal. economic liberty The right to own and use property free from unreasonable government interference. Civil Liberties in the Constitution 15.1 Identify civil liberties protections in the Constitution he framers were particularly concerned about establishing a society in which liberty might flourish. While government was necessary to protect liberty from the threat of anarchy, the framers believed that government might threaten liberty if it became too powerful. Civil liberties are freedoms protected by constitutional provisions, laws, and practices from certain types of government interference. As embodied in the Bill of Rights, civil liberties are protected by prohibitions against government actions that threaten the enjoyment of freedom. These liberties fall into two major groups: first, those associated with freedoms of expression, belief, and association; and second, those involving protections for people accused of committing a crime. In the Preamble to the Constitution, the framers wrote that they aimed to “secure the Blessings of Liberty to ourselves and our Posterity.” But in the original Constitution, they protected few liberties from the national government they were creating and almost none from state governments. To safeguard against tyranny, the framers preferred to give the national government little power with which to attack individual liberties. Rather than listing specific prohibitions against certain kinds of actions, then, they believed that a republican constitutional design that fragmented government power and that included separation of powers, checks and balances, and federalism would best protect liberty. Still, the framers singled out certain freedoms as too crucial to be left unmentioned. For example, the Constitution prohibits Congress and the states from suspending the writ of habeas corpus, except when public safety demands it because of rebellion or invasion, and from passing bills of attainder or ex post facto laws (see Table 15.1 for an enumeration). Many citizens found the proposed Constitution too stingy in its listing of liberties, so that the Federalists were led to promise a “bill of rights” as a condition for passing the Constitution. The Bill of Rights was passed by the 1st Congress in 1789 and was ratified by the required number of states by 1791. Passage of the Bill of Rights made the Constitution more democratic by specifying protections of political liberty and by guaranteeing a context of free political expression that makes popular sovereignty possible. Reading the Constitution and its amendments, however, reveals how few of our most cherished liberties are to be found in this document. Decisions by government officials and changes brought about by political leaders, interest groups, social movements, and individuals remade the Constitution in the long run; hence many of the freedoms we expect today are not specifically mentioned there. Some extensions of protected liberties were introduced by judges and other officials. Others have evolved as the culture has grown to accept novel and even once-threatening ideas. Still other liberties have secured a place in the Republic through partisan and ideological combat. The key to understanding civil liberties in the United States, then, is to follow their evolution over the course of our nation’s history. T Rights and Liberties in the Nineteenth Century 15.2 490 D Trace the evolution of civil liberties in the nineteenth century uring the nineteenth century, the range of protected civil liberties in the United States was somewhat different from their range today. Especially noteworthy were the special place of economic liberty and the understanding that the Bill of Rights did not apply to state governments. TABLE 15.1 CIVIL LIBERTIES IN THE U.S. CONSTITUTION 15.1 The exact meaning and extent of civil liberties in the Constitution are matters of debate, but here are some freedoms spelled out in the text of the Constitution and its amendments, or clarified by early court decisions. Constitution Article I, Section 9 15.2 Congress may not suspend habeas corpus. Congress may not pass bills of attainder or ex post facto laws. Article I, Section 10 15.3 States may not pass bills of attainder or ex post facto laws. States may not impair obligation of contracts. Article III, Section 2 15.4 Criminal trials in national courts must be jury trials in the state in which the defendant is alleged to have committed the crime. Article III, Section 3 No one may be convicted of treason unless there is a confession in open court or testimony of two witnesses to the same overt act. Article IV, Section 2 Citizens of each state are entitled to all privileges and immunities of citizens in the several states. The Bill of Rights First Amendment Congress may not make any law with respect to the establishment of religion. Congress may not abridge the free exercise of religion. Congress may not abridge freedom of speech or of the press. Congress may not abridge the right to assemble or to petition the government. Second Amendment Congress may not infringe the right to keep and bear arms. Third Amendment Congress may not station soldiers in houses against the owner’s will, except in times of war. Fourth Amendment Citizens are to be free from unreasonable searches and seizures. Federal courts may issue search warrants based only on probable cause and specifically describing the objects of search. Fifth Amendment Citizens are protected against double jeopardy (being prosecuted more than once for the same crime) and self-incrimination. Citizens are guaranteed against deprivation of life, liberty, or property without due process of law. Citizens are guaranteed just compensation for public use of their private property. Sixth Amendment Citizens have the right to a speedy and public trial before an impartial jury. Citizens have the right to face their accuser and to cross-examine witnesses. Eighth Amendment Excessive bail and fines are prohibited. Cruel and unusual punishments are prohibited. ◻ Economic Liberty in the Early Republic Liberty may be understood as protection against government interference in certain kinds of private activities. Among the few such protections mentioned in the original Constitution was one that concerned the use and enjoyment of private property. This is hardly surprising; recall that the constitutional convention was convened, in part, because many of the new nation’s leading citizens by the mid-1780s were growing ever more alarmed by threats to their holdings represented by passage of stay laws and the production of cheap paper money in several states, and insurrections like Shays’ Rebellion. Property rights protections are stated most directly in the Constitution in the language of contracts (i.e., the freedom to enter into binding private agreements about many things, including the use of one’s property): “No State shall . . . pass any . . . Law impairing the Obligation of Contracts” (Article I, 491 15.1 15.2 full faith and credit The provision in Article IV, Section 1 of the Constitution which provides that states must respect the public acts, laws, and judicial rulings of other states. contract clause 15.3 15.4 The portion of Article I, Section 10 of the Constitution that prohibits states from passing any law “impairing the obligations of contracts.” Section 10).3 The framers protected private property in a number of other constitutional provisions as well, including provisions that created a system for recognizing intellectual property (patents and copyrights) and for safeguarding property in the form of slaves by requiring Americans to return runaway slaves to their owners. The full faith and credit clause (Article IV, Section 1), moreover, obligated each state to recognize contracts and other legal obligations entered into by its citizens with citizens or legal bodies in other states. The so-called takings clause of the Fifth Amendment—ratified in 1791 with other amendments that constitute the Bill of Rights—declares that “private property [shall not] be taken for public use, without just compensation.” The importance of property rights as a fundamental liberty in the body of the Constitution and its Amendments was reinforced by more than a century of judicial interpretation.4 THE MARSHALL COURT (1801–1835) Although the Supreme Court ruled (in Barron v. Baltimore, 1833) that the Bill of Rights did not apply to the states, it ruled on several occasions that the contract clause in the Constitution directly applied against unwarranted state action. In the hands of Chief Justice John Marshall, the clause became an important defense of property rights against interference by the states. In Fletcher v. Peck (1810), for example, the Marshall Court upheld a sale of public land, even though almost all of the legislators who had voted for the land sale had been bribed by the prospective purchasers. Chief Justice Marshall wrote in his majority opinion that even a fraudulent sale created a contract among private individuals that the state could not void. In Dartmouth College v. Woodward (1819), Marshall argued in his majority opinion that New Hampshire could not modify the charter of Dartmouth College because the original charter constituted a binding contract, the terms of which could not be changed without impairing the obligations in the original contract. The framers’ attempt to protect the contractual agreements of private parties ballooned in the hands of the Marshall Court to bar virtually any and all changes by the states of established property relations. 5 This expansion of property rights protections under the contract clause made it very difficult for states to regulate business activities because any such regulation could be interpreted as interfering with those binding contracts by which businesses were established and operated. HISTORIC RULING 492 An important Supreme Court ruling solidifying property rights under the Constitution involved Dartmouth College, shown here in a drawing from 1819, the same year Dartmouth College v. Woodward was decided. Why did the framers and the Supreme Court place such importance on property rights? due process clause The section of the Four teenth Amendment that prohibits states from depriving anyone of life, liberty, or property “without due process of law,” a guarantee against arbitrary or unfair government action. 15.1 15.2 15.3 15.4 SLAVES BRINGING IN THE COTTON CROP Prior to passage of the Thirteenth and Fourteenth Amendments after the Civil War, African American slaves were considered to be nothing more or less than the private property of their owners. How did the framers make the Constitution amenable to the practice of slavery? THE TANEY COURT (1836–1864) Under the leadership of Chief Justice Roger Taney, the Court began to make a distinction between private property used in ways that encouraged economic growth and private property used for simple enjoyment. In landmark cases, the Taney Court issued rulings favoring the former when the two concepts of property conflicted.6 In Charles River Bridge v. Warren Bridge (1837), investors who had secured a contract from the Massachusetts legislature for the construction of the Charles River Bridge charged that the state had violated its contract by chartering the construction of a competing bridge less than a decade later. In the majority opinion, Chief Justice Taney argued that the original charter for the Charles River Bridge did not imply a monopoly that closed off competitors. He ruled that Massachusetts could charter the rival Warren Bridge because the states should encourage economic competition and technological advances. It did not matter that the second bridge would result in financial losses for stockholders in the Charles River Bridge. Taney argued that the “creative destruction” of established but idle property in a dynamic market economy is the price of economic and social progress. The Court’s defense of property rights was especially and tragically strong when it came to slavery. Until the Civil War, courts in the North and the South consistently upheld the right of slaveholders to recapture fugitive slaves. In his opinion in Dred Scott v. Sandford (1857)—a case that helped bring on the Civil War because it declared that Congress could not regulate slavery in any way, voiding the “Missouri Compromise” that had balanced the interests of free states and slave states as the country expanded westward—Chief Justice Taney declared that slaves who traveled to free states (nonslave) with their masters could not sue for their freedom because that would mean depriving slave owners of their property. Slaves, in this view, like land and tools, were nothing more nor less than private property belonging to their owners, not people in a legal sense. ◻ Economic Liberty After the Civil War The Fourteenth Amendment, passed after the Civil War, was designed to guarantee the citizenship rights of the newly freed slaves. It included a clause—the due process clause—stating that no state “may deprive a person of life, liberty, or property, without due process of law.” Strangely, the Supreme Court in the late 493 15.1 selective incorporation The gradual and piecemeal spread of the protections of the Bill of Rights to the states by the U.S. Supreme Court. 15.2 15.3 15.4 nineteenth century began to interpret this clause as a protection for businesses against the regulatory efforts of the national government and the states. In the view of the Court in Santa Clara County v. Southern Pacif ic Railroad (1886), corporations were “persons” in the eyes of the law and were subject to the same protections provided by the Fourteenth Amendment for any other “persons” in the United States. The Court’s most famous decision in this regard was Lochner v. New York (1905). Lochner ran a bakery in Utica, New York. He was convicted of requiring an employee to work more than 60 hours per week, contrary to a New York State maximum-hours statute. But Justice Rufus Peckham wrote for a 5–4 Supreme Court majority that the right of employer and employee to negotiate hours of work was part of the “liberty” of which, under the Fourteenth Amendment, no person could be deprived without due process of law. In other words, New York State had no right to regulate the hours of labor. The nineteenth century was an era in which the rights of property were expanded, refined, and altered to become consistent with an emerging, dynamic industrial economy. The twentieth century would bring new approaches to property rights and to political liberties in general. These new approaches would be triggered by structural transformations in the economy and culture, the efforts of new political groups and movements, and the actions of government officials, all of which we will examine in greater detail. Nationalization of the Bill of Rights 15.3 Explore on MyPoliSciLab Simulation You Are a Police Officer Outline the liberties guaranteed by the Bill of Rights and their gradual application to the states by the Supreme Court mericans rightly understand the Bill of Rights to be a foundation of American freedom. Until the twentieth century, however, the protections of the Bill of Rights did not apply to the states, only to the national government. The Supreme Court only gradually applied the Bill of Rights to the states through a process known as selective incorporation.7 The framers were worried more about national government intrusions on individual freedom than about state government intrusions. Most of the states, after all, had bills of rights in their own constitutions, and, being closer to the people, state governments would be less likely to intrude on the people’s freedom, or so the framers believed. This reading of the Bill of Rights as a prohibition of certain actions by the national government seems explicit in the language of many of the first 10 amendments. The first, for instance, starts with the words “Congress shall make no law. . . .” This understanding of the Bill of Rights as a set of prohibitions against certain actions by the national government and not the states was confirmed by Chief Justice John Marshall in Barron v. Baltimore (1833). As he put it: A The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. 494 After the Civil War, the majority in Congress very clearly wanted to change the reach of the Bill of Rights, extending it to the states. It did so by approving the Fourteenth Amendment in 1866, which was ratified by the states by 1868. After declaring that “all persons born or naturalized in the United States are citizens of both the United States and the states in which they reside,” the Amendment’s three key clauses specify that the states cannot violate the rights and liberties of the people living in them: • • • The privileges and immunities clause specifies that no state “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” privileges and immunities clause The due process clause specifies that no state shall “deprive any person of life, liberty, or property, without due process of law.” The portion of Article IV, Section 2 of the Constitution that says that citizens from out of state have the same legal rights as local citizens in any state. The equal protection clause requires states to provide equal treatment for all persons within their boundaries. equal protection clause Although Congress wrote the Fourteenth Amendment to guarantee that states would protect all of U.S. citizens’ rights and liberties, including those found in the Bill of Rights, the Supreme Court was very slow in nationalizing or incorporating the Bill of Rights, making it binding on the state governments. Indeed, the Supreme Court has not yet fully incorporated or nationalized the Bill of Rights. Rather, it has practiced selective incorporation, only slowly adding, step by step, even traditional civil liberties to the constitutional obligations of the states. Several Amendments have not been incorporated, including the Third on quartering troops, the Fifth on a right to a grand jury hearing, the Seventh on a right to a jury trial in civil suits, and the Eighth’s prohibition against excessive bail and fines. The Second Amendment’s right of gun ownership was declared a fundamental individual right by the Court in 2008 in District of Columbia v. Heller and was incorporated—that is, made incumbent upon the states to not unreasonably restrict the enjoyment of this right—soon after in McDonald v. Chicago (2010). The prevailing view in the courts until then had been that the wording of the Second Amendment protects a collective right to form militias rather than an individual right to have guns. Gun advocates such as the National Rifle Association and libertarian organizations like the Cato Institute, on the other hand, had long held that the Amendment is not a collective right but a fundamental individual right, which the Court affirmed in Heller. Strangely perhaps, a handful of influential liberal constitutional scholars such as Sanford Levinson, Akhil Reed Amar, and Lawrence Tribe had come around to this “individual rights” understanding of the Second Amendment as well.8 The issue of gun rights is not entirely settled, however; just how much state and local regulation of gun ownership the Court will allow remains an open question. How does the Supreme Court decide whether to incorporate some portion of the Bill of Rights? That is, what standard does the Court use to protect a liberty specified in the Bill of Rights from violation by a state government? The answer is quite simple and is spelled out, strange as it may seem, in footnote 4 of the opinion of the Court in United States v. Carolene Products Company (1938), written by Justice Harlan Fiske Stone, where he set out the legal standards the Court had been using in this area of constitutional interpretation, which he hoped and expected future justices would follow. Stone suggested in his footnote that most legislative enactments by states would fall under what he called ordinary scrutiny, meaning that the Court would assume, unless convinced otherwise, that its actions were constitutional. However, the footnote declares, three types of state actions would automatically be presumed unconstitutional, the burden being on the states to prove otherwise. When state actions are presumed to be unconstitutional, the Court is said to be exercising strict scrutiny. The three types of suspect state actions that bring strict scrutiny are the following: • Those that seem to contradict specific prohibitions in the Constitution, including those in the Bill of Rights. • Those that seem to restrict the democratic process. • Those that seem to discriminate against racial, ethnic, or religious minorities. The first of these is the subject matter of this chapter. The second has been addressed at several points in the text; for example in the cases establishing “one person, The section of the Four teenth Amendment which guarantees that everyone will be treated equally by government. 15.1 15.2 15.3 15.4 nationalizing The process by which provisions of the Bill of Rights become incorporated. See incorporation. incorporation The process by which the Supreme Court has made most of the provisions of the Bill of Rights binding on the states. See nationalizing. ordinary scrutiny The assumption that the actions of elected bodies and officials are legal under the Constitution. strict scrutiny The assumption that actions by elected bodies or officials violate constitutional rights. 495 15.1 15.2 15.3 15.4 one vote.” In the remainder of this chapter, we focus on specific civil liberties, clarifying their present status in both constitutional law and political practice. It is important to note in the course of these discussions that the freedoms guaranteed in the Bill of Rights and in other sections of the Constitution hold and have always held with respect to actions of the national government; incorporation is about the process of extending these protections against government violations of freedom on the part of state and local governments. When the Supreme Court exercises strict scrutiny with respect to some law or statute or regulation, it can focus its displeasure at the federal level—for example, bills passed by Congress and signed into law by the president—or at state and local governments—for example, actions by governors, legislators, mayors, and police departments. ◻ Freedom of Speech Congress shall make no Law . . . abridging the freedom of speech. —First Amendment to the U.S. Constitution Speech can take many forms. The Court has had to consider which forms of speech are protected under the Constitution. (See Figure 15.1 for a timeline on milestones in free expression, of which speech is a key component.) 496 POLITICAL SPEECH For many people, the right to speak one’s mind is the first principle of a free and democratic society. Democratic theorists have argued, by and large, that a democratic society is based not only on popular sovereignty, but on the existence of a range of freedoms that allow free and open conversations among the people about the kind of government that is best for them and the sorts of public policies they consider most appropriate. Central among these freedoms is speech, the idea being that public conversations about government and politics depend on the ability and willingness of people to express their views, even if it means saying unpopular, even inflammatory things. Justice Oliver Wendell Holmes described the centrality of this “marketplace of ideas” in a free society in his famous and influential dissenting opinion in Abrams v. United States (1919). Given the centrality of free speech to democracy, it is perhaps odd that free speech was not incorporated (made applicable to state governments) by the Supreme Court until 1925 in Gitlow v. New York (1925). Benjamin Gitlow had published The Left Wing Manifesto, which embraced a militant, revolutionary socialism to mobilize the proletariat to destroy the existing order in favor of communism. Gitlow did not advocate specific action to break the law, but he was nonetheless convicted of a felony under the New York Criminal Anarchy Law (1902). The Supreme Court majority held that New York State was bound by the First Amendment—thus incorporating the First Amendment, making it binding on all states—but then argued that even the First Amendment did not prohibit New York from incarcerating Gitlow for his publishing and distributing his pamphlet because it represented a danger to peace and order for which, said Justice Edward Sanford, “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting . . . unreasonably when . . . it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.” In his famous dissent, Justice Oliver Wendell Holmes said, “Every idea is an incitement. . . . Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration.” Freedom of speech has grown in the ensuing years so that far more speech is protected than is not. In general, no U.S. government today—whether federal, state, or local—can regulate or interfere with the content of speech without a compelling reason. For a reason to be compelling, a government must show that the speech poses a “clear and present danger”—the standard formulated by Holmes in Amendment Key: First • Second • Fourth • Fifth • Sixth • Eighth • Ninth • 1895 1897 15.1 Payment of compensation for the taking of private property 1900 1925 Freedom of speech Chicago, Burlington and Quincy R. Co. v. Chicago 15.2 15.3 1925 Gitlow v. New York 1930 1931 15.4 Freedom of the press Near v. Minnesota 1937 1935 Freedom of assembly Dejonge v. Oregon Freedom to petition 1940 Free exercise of religion Cantwell v. Connecticut Hague v. CIO 1940 1947 1947 Establishment of religion Cruel and unusual punishment 1945 Louisiana ex rel. Francis v. Resweber 1948 Cole v. Arkansas Everson v. Board of Education 1948 Due notice Public trial 1950 In re Oliver 1961 1949 Exclusionary rule Unreasonable search and seizure 1955 Wolf v. Colorado 1963 Right to counsel (felonies) 1960 Gideon v. Wainwright Confrontation and crossexamination of adverse witness 1965 1970 Speedy trial 1975 Double jeopardy 1980 When jeopardy attaches 1967 Compulsory process to obtain witnesses 1968 Jury trial 1972 Right to counsel (misdemeanor) when jail is possible 1985 2008 Free speech for corporations and unions in campaigns Citizens United v. Federal Election Commission Privacy* Argersinger v. Hamlin Crist v. Bretz 2010 1965 Duncan v. Louisiana Benton v. Maryland 1978 Self-Incrimination Washington v. Texas Klopfer v. North Carolina 1969 1964 Griswold v. Connecticut Pointer v. Texas 1967 Mapp v. Ohio Malley v. Hogan 1965 FIGURE 15.1 1939 Right to own a firearm D.C. v. Heller 2010 TIMELINE: MILESTONES IN INCORPORATION OF THE BILL OF RIGHTS a “Privacy” does not appear in the Ninth Amendment, only reference to “other rights retained by the people.” Source: United States Supreme Court 497 15.1 15.2 15.3 15.4 498 Schenck v. United States (1919)—that it has a duty to prevent. The danger, moreover, must be very substantial, and the relationship between the speech and the danger must be direct, such as falsely yelling “Fire!” in a crowded theater. The danger must also be so immediate that the people responsible for maintaining order cannot afford to tolerate the speech. As the Court put it in Brandenburg v. Ohio (1969), in a case involving an appeal of the conviction of a leader of the Ku Klux Klan under Ohio’s criminal syndicalism law, “. . . the constitutional guarantees of free speech . . . do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to incitement or producing imminent lawless action and is likely to incite or produce such action.” Abstract advocacy of ideas, even ideas considered dangerous by police, politicians, or popular majorities, is protected unless it meets both conditions. In the name of free speech the Court has been gradually taking apart legislative efforts to restrict campaign spending in federal elections. In Buckley v. Valeo (1976) it invalidated parts of the Federal Election Campaign Act, most significantly, a restriction on how much money a candidate for federal office might put into his or her own campaign. In Federal Election Commission v. Wisconsin Right to Life (2007), the Court ruled that restrictions on media advertising by corporations and labor unions in the period immediately before an election which had been prohibited by the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold) is an unconstitutional restriction on free speech. In Citizens United v. Federal Election Commission (2010), a bitterly divided Court ruled in the name of free speech that government could not restrict in any way what corporations and unions collect and spend on advertising expressing their ideas during campaigns.9 Soon after, the D.C. Circuit Court of Appeals ruled in SpeechNow v. FEC that political committees could accept unlimited money from people, unions, and corporations for the purpose of independent (that is, not formally tied to or coordinated with a particular candidate) political spending. These quickly came to be called super PACs and played a big role in the GOP primaries during the 2011–2012 election cycle and in the general election that followed. The foundation for the Wisconsin, Citizens United, and SpeechNow rulings is that money spent in campaigns expressing political ideas is speech that must be protected and that corporations and unions are “persons” under the Constitution with the same liberties as natural persons.10 Not all political speech is protected against government restriction. The Supreme Court has allowed governments to restrain and punish speakers whose words can be shown to lead or to have led directly to acts of violence or vandalism, interfered with the constitutional rights of others (e.g., blocking access to an abortion clinic), disrupted a legitimate government function (e.g., a sit-in demonstration in the House chambers), talked to others of information contained in classified documents, or trespassed on private or public property, whether people’s businesses and homes or a secured defense installation. The Court has also allowed some restrictions on speech during time of war. But over the years, the Court has been careful to keep the leash tight on government officials who have tried to quiet the voice of citizens. Any attempt to restrict political speech must be content neutral (i.e., it cannot favor some views over others), serve a legitimate government purpose, be narrowly tailored to address a specific problem (i.e., it cannot be vague), and not have a chilling effect on other people’s willingness to exercise their free speech rights. All in all, then, freedom of speech has gained powerful legal foundations over the years and is an important component of democracy in the United States.11 ACTIONS AND SYMBOLIC SPEECH Difficult questions about free expression persist, of course. Speech mixed with conduct may be restricted if the restrictions are narrowly and carefully tailored to curb the conduct while leaving the speech unmolested. Symbolic expressions (such as wearing armbands or picketing) may also receive less protection from the Court. The use of profanity or words that are likely to cause violence (“fighting words”) may be regulated in some cases, as may symbolic actions that prevent others from carrying out legitimate activities. Still, freedom of speech throughout the United States has grown to the point at which contenders wrestle with relatively peripheral issues, leaving a large sphere of expressive freedom. Texas v. Johnson (1989) shows just how far the protection of free speech has expanded. In this case, Gregory Johnson challenged a Texas state law against flag desecration under which he had been convicted for burning an American flag as part of a demonstration at the 1984 Republican convention. Although dominated by a conservative majority, the Rehnquist Court overturned the Texas law, saying that flag burning falls under the free expression protections of the Constitution unless imminent incitement or violence is likely. In response, some members of Congress have tried on several occasions, without success, to pass an anti–flag desecration constitutional amendment for consideration by the states. SUPPRESSION OF FREE EXPRESSION A major exception to the expansion of freedom of expression has been the periodic concern among the authorities about internal security and national defense.12 Fearing a rise of radicalism inflamed by the French Revolution, Congress passed the Sedition Act of 1798 to forbid criticism of the government and its leaders. The Civil War saw some restrictions on speech by the states, although the national government remained surprisingly lenient on this score (the Lincoln administration did, however, jail some rebel sympathizers without trial and used military tribunals to try civilians accused of actively helping the southern cause). Censorship of dissent and protests occurred during and after World War I; 32 states enacted laws to suppress dangerous ideas and talk, and local, state, and national officials led raids on the offices of “radicals.” Hoping to become president, Attorney General A. Mitchell Palmer conducted raids on the headquarters of suspect organizations in 1919 and 1920, sending the young J. Edgar Hoover out to collect information on suspected anarchists and communists. A similar period of hysteria followed World War II. Its foundations were laid when the Democrat-controlled House of Representatives created the House Un-American Activites Committee (generally referred to as the HUAC). When the Republicans won control of the Congress in 1952, they professed to see security risks in the Truman administration, labor unions, and Hollywood. Soon Democrats and Republicans alike were exploiting the “Red scare” for political gain. The greatest gain (and, subsequently, the hardest fall) was for Senator Joseph McCarthy (R–WI). McCarthy brandished lists of purported communists and denounced all who opposed him as traitors.13 15.1 15.2 15.3 15.4 SOUNDING THE ALARM ON THE COMMUNIST THREAT Senator Joseph McCarthy made his reputation and career sounding the alarm bell about communists and communist sympathizers in every nook and cranny of the federal government. Though he was almost always wrong in his assertions, and ruined the lives and careers of many, he did not stir the wrath of other elites until he took on the Army in 1954. Army counsel Joseph Welch listens in disbelief as the junior senator from Wisconsin points out the location of the latest threats during a committee hearing. 499 15.1 15.2 15.3 15.4 prior restraint The government’s power to prevent publication, as opposed to punishment afterward. Many civil libertarians also worry about the possible chilling effect on free speech and privacy violations of new laws passed to fight what George W. Bush called the war on terrorism. Most important is the USA Patriot Act—passed in 2001 and renewed in 2006 with a few small changes to allow for a little more judicial oversight— granting the federal government access to Americans’ private and business records. Revelations that the FBI and the NSA had been conducting secret and warrantless searches of phone conversations (land lines and cell phones), financial transactions, and Internet communications ever since 9/11 led to intense press scrutiny, public condemnation, and congressional probes in early 2006, but the opposition was unable to block renewal of the Patriot Act. In 2007, in a revelation that came too late to affect congressional deliberations on renewal, FBI director Robert Mueller reported to Congress that, since 2001, his agents had improperly and sometimes illegally obtained personal information on thousands of American citizens by overzealously using tools provided by the Act.14 To the disappointment of many of his supporters, President Barack Obama continued many of the policies instituted during the Bush years, including searching business records and roving wiretaps, something we explore in a later section of this chapter. ◻ Freedom of the Press Congress shall make no law . . . abridging the freedom . . . of the press. —First Amendment to the U.S. Constitution In an aside in the opinion of the Court in Gitlow v. New York (1925), the Supreme Court included freedom of the press as a freedom guaranteed against state interference by the Fourteenth Amendment. Incorporation of this aspect of the Bill of Rights seems reasonable in light of the importance of the free flow of information in a society that aspires to freedom and democracy. PRIOR RESTRAINT In Near v. Minnesota (1931), the Court made good on the promise of Gitlow by invalidating the Minnesota Public Nuisance Law as a violation of freedom of the press.15 Jay Near published the Saturday Press, a scandal sheet that attacked local crime, public officials, and a few other groups that he disliked: Jews, Catholics, blacks, and unions, for example. Near and his associates were ordered by a state court not to publish, sell, or possess the Saturday Press. This sort of state action is called prior restraint because it prevents publication before it has occurred. Freedom of the press is not necessarily infringed if publishers are sued or punished for harming others after they have published, but Minnesota was trying to keep Near and his associates from publishing in the future. The prohibition of prior restraint on publication remains the core of freedom of the press.16 Freedom of the press and freedom of speech tend to be considered together as freedom of expression, so the general principles applicable to free speech apply to freedom of the press as well. Thus, the Court will allow the repression of publication only if the state can show some “clear and present danger” that publication poses, similar to its position on free speech. In New York Times v. United States (1971), the Court ruled that the U.S. government could not prevent newspapers from publishing portions of the Pentagon Papers, secret government documents revealing the sordid story of how the United States had become involved in the Vietnam War. A major expansion of freedom of the press in New York Times v. Sullivan (1964) protects newspapers against punishment for trivial or incidental errors when they are reporting on public persons. This limits the use or threat of libel prosecutions by officials because officials can recover damages only by showing that the medium has purposely reported untruths or has made no effort to find out if what is being reported is true. 500 PROTECTING SOURCES Many reporters and executives in news organizations believe that reporters must be able to protect their sources if they are to have access to insider information that the public needs to know. Without protection of sources, newspeople suggest, the stream of information that the public requires in a democracy will flow more slowly. This is the argument that New York Times reporter Judith Miller made when she went to jail for 85 days in 2005 for refusing to testify about her source in the administration who had revealed the identity of CIA operative Valerie Plame, who happened to be the wife of a vocal critic of President Bush’s reasons for going to war in Iraq. Although most states have shield laws allowing reporters to protect their sources, there is no such federal law, and the Supreme Court has rejected the argument that constitutional doctrines on freedom of the press give reporters immunity from testifying when they have been issued a subpoena by a court (see Branzburg v. Hayes, 1972). obscenity As defined by the Supreme Court, the representation of sexually explicit material in a manner that violates community standards and is without redeeming social importance or value. 15.1 15.2 15.3 15.4 OFFENSIVE MEDIA Pornography is a nonlegal term for offensive sexual materials; the legal term is obscenity. Although the courts have held that obscenity is unprotected by the First Amendment, the definition of obscenity has provoked constitutional struggles for half a century. Early disputes concerned the importation and mailing of works that we regard today as classics: James Joyce’s Ulysses and D. H. Lawrence’s Lady Chatterley’s Lover, for example.17 Although the justices admitted that principled distinctions sometimes eluded them ( Justice Potter Stewart once famously said that he did not know how to define hard-core pornography but that he knew it when he saw it), a reasonably clear three-part test emerged from Miller v. California (1973): 1. The average person, applying contemporary community standards, must find that the work as a whole appeals to the prurient interest (lust). 2. The state law must specifically define what depictions of sexual conduct are obscene. 3. The work as a whole must lack serious literary, artistic, political, or scientific value. If the work survives even one part of this test, it is not legally obscene and is protected by the First Amendment. Community standards, applied by juries, are used to judge whether the work appeals to lust and whether the work is clearly offensive. However, literary, artistic, political, and scientific value (called the LAPS test, after the first letter of each of the four values) is not judged by community standards but by the jury’s assessment of the testimony of expert witnesses. If, and only if, all three standards are met, the Supreme Court will allow local committees to regulate the sale of obscene materials. Because these tests are not easily met in practice, the Miller ruling has done little to stem the tide of sexually explicit material in American popular culture. 18 The Court has ruled, however, in New York v. Ferber (1982) that states can prohibit the production, distribution, and sale of child pornography. Recently, many Americans have begun to worry about the availability to minors of sexually offensive material on the Internet. Responding to this concern, Congress and President Clinton cooperated in 1996 to pass the Communications Decency Act, which made it a crime to transmit over the Internet or to allow the transmission of indecent materials to which minors might have access. The Supreme Court, in Reno, Attorney General of the United States v. American Civil Liberties Union (1997), ruled unanimously that the legislation was an unconstitutional violation of the First Amendment, being overly broad and vague and violative of the free speech rights of adults to receive and send information (the Court reaffirmed this ruling in 2004). The strong and unambiguous words of the opinion of the Court make it clear that government efforts to regulate the content of the Internet, as well as cable television, will not get very far. Because the government licenses a limited number of airwaves (there are only so many frequencies available at any one time) and they are considered public property, broadcast television falls under different rules. Thus, the Court has allowed the Federal Communications Commission to ban cursing and nudity on broadcast TV, something it cannot do with respect to other electronic or print media or cable television. The Court went further in affirming new media press freedoms in 2011 when it ruled that efforts by governments to ban violent video games are constitutionally 501 15.1 15.2 15.3 15.4 CONTROVERSIAL ART The distinction between art and obscenity can be very difficult to establish, and battles over the banning of controversial works, such as Robert Mapplethorpe’s homoerotic photographs, are quite common in American communities. How does the Court decide what constitutes obscenity? free exercise clause That portion of the First Amendment to the Constitution that prohibits Congress from impeding religious observance or impinging upon religious beliefs. unacceptable. As Justice Scalia wrote in Brown v. Entertainment Merchants Association (2011), “Like the protected books, plays and movies that preceded them, video games communicate ideas—and even social messages—through familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” ◻ Religious Freedom For much of our history, Congress did not impede the exercise of religion because it did not legislate much on the subject. Because the states were not covered by the First Amendment, the free exercise of religion was protected by state constitutions or not at all. The Supreme Court was content to defer to the states on issues of religious freedom. As late as 1940, in Minersville School District v. Gobitis, the Supreme Court upheld the expulsion of two schoolchildren who refused to salute the flag because it violated their faith as Jehovah’s Witnesses. Justice Harlan Stone wrote a stinging dissent: The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey, if it is to adhere to that justice and moderation without which no free government can exist. Stone’s dissent, as well as a series of decisions deferring to state restrictions on Jehovah’s Witnesses in 1941 and 1942, eventually moved other justices to Stone’s side. In West Virginia v. Barnette (1943), the Court reversed Gobitis and firmly established free exercise of religion as protected against infringement by the states. FREE EXERCISE OF RELIGION Congress shall make no law . . . prohibiting the free exercise [of religion]. —First Amendment to the U.S. Constitution 502 The core of the free exercise clause today is that neither the federal government nor state governments may interfere with religious beliefs. This is one of the few absolutes in U.S. constitutional law. Religious actions, however, are not absolutely protected. Here the issue involves whether people with sincere religious beliefs are exempt from laws and regulations that hold for others in the course of practicing their religion. The Court has upheld state laws, for instance, outlawing the use of peyote (an illegal hallucinogen) in Native American religious ceremonies (Employment Division v. Smith, 1990). Congress and President Clinton tried to overturn this decision with the Religious Freedom Restoration Act in 1993, but the Act was declared unconstitutional in City of Boerne v. Flores (1997) because the act, in view of the Court majority, unduly extended national government power over the states. By and large, then, people are free in the United States to believe what they want to believe religiously, and to worship as they wish unless worship practices violate general statutes that serve some compelling public purpose, such as state and federal drug laws or local public health ordinances (which in most locales do not permit such religious practices as animal sacrifice). establishment clause The part of the First Amendment to the Constitution that prohibits Congress from establishing an official religion; the basis for the doctrine of the separation of church and state. 15.1 15.2 15.3 15.4 ESTABLISHMENT OF RELIGION Congress shall make no law respecting an establishment of religion. —First Amendment to the U.S. Constitution Many countries in the world have an official state religion. Sometimes this means that religious law trumps secular law in almost every instance, as in Saudi Arabia and Iran. Sometimes this means that religious law takes precedence in a narrow range of matters, usually involving family matters like marriage and divorce, as in Israel. Often, a state church will exist but not affect everyday life in many ways, playing more of a symbolic role. In most Western European democracies that have monarchies, for example, the king or queen must be a member in good standing of the state church. For example, monarchs in Great Britain must be members of the Church of England. There is no state church in the United States but many churches (and mosques and synagogues and temples) and many religious people. What allows them to peacefully coexist, in the view of many, is not only the broad freedom to worship or not worship as one pleases under the terms of the “free exercise” clause of the First Amendment, but keeping religion and government at arm’s length from one another. Freedom of conscience, it is often argued, requires that government not favor one religion over another by granting it special favors, privileges, or status, or interfering in the affairs of religious institutions. It requires, in Jefferson’s famous terms, “a wall of separation between church and state.” The framers were mindful of the violent history in Europe and Great Britain involving which Christian religious denomination, Catholicism or Protestantism, would be supreme in the state. The Thirty Years’ War, the Inquisition, the struggle over the British crown following the reign of Henry VIII, and conflicts within Protestantism that contributed to the English Civil War were the sad results. Many people who settled in the New World were fleeing these religious conflicts.19 Nevertheless, despite general support for the doctrine of “separation of church and state,” incorporation of the establishment clause by the Court proved to be a particularly messy matter. In Everson v. Board of Education (1947), Justice Hugo Black for the Supreme Court determined that no state could use revenues to support an institution that taught religion, thus incorporating the First Amendment ban into the Fourteenth Amendment. But the majority in that case upheld the New Jersey program that reimbursed parents for bus transportation to parochial schools. A year later, Justice Black wrote another opinion incorporating the establishment clause in McCollum v. Board of Education (1948). This time, a program for teaching religion in public schools was found unconstitutional. In Zorach v. Clauson (1952), however, the Court upheld a similar program in New York State that let students leave school premises early for religious instruction. The establishment clause had been incorporated, but the justices long have had a difficult time determining what “separation of church and state” means in practice. 503 15.1 15.2 15.3 15.4 NO SEPARATION OF CHURCH AND STATE This young woman was sentenced to death by stoning for having committed adultery by a Sharia Islamic court in Nigeria in 2002. The man in the adulterous relationship was not charged with a crime. Her sentence was overturned by Nigerian authorities after the case sparked international outrage and censure. What might our country look like if the majority’s religious preferences became the basis for constitutional law and statutes? THE LEMON TEST The Warren Court (1953–1969) brought together a solid church– state separationist contingent whose decisions the early Burger Court (1969–1973) distilled into the major doctrine of the establishment clause: the “Lemon test.” In Lemon v. Kurtzman (1971), Chief Justice Warren Burger specified three conditions that every law must meet to avoid “establishing” religion: 1. The law must have a secular purpose. That secular purpose need not be the only or primary purpose behind the law. The Court requires merely some plausible nonreligious reason for the law. 2. The primary effect of the law must be neither to advance nor to retard religion. The Court will assess the probable effect of a governmental action for religious neutrality. 3. Government must never foster excessive entanglements between the state and religion. 504 While the Lemon test would seem to have erected substantial walls that bar mixing church and state, the Court has not been entirely consistent over time in applying it to real cases.20 For example, while the Rehnquist Court took some bricks out of the wall separating church and state, it was not altogether predictable in its rulings. In Rosenberger v. University of Virginia (1995), it ruled that the university (a state-supported institution) must provide the same financial subsidy to a student religious publication that it provides to other student publications. In 2002, in Zelman v. Simmons-Harris, decided by a 5–4 vote, the Court approved Cleveland’s program of school vouchers that provides public money to parents who want to send their children to private schools, whether secular or religious. The Court majority based its ruling on the fact that public monies do not go directly to religious schools in the Cleveland program but rather to parents who are free to choose their children’s school(s). In other cases, the Rehnquist Court ruled that public monies can go to parochial schools if they are for programs that are similar to ones in public schools and not used to advance religious instruction. This would include things such as funds to purchase science books or support drug education programs.21 However, the Rehnquist Court was unwilling to depart too far from the principle of separation of church and state; in 2004, for example, the Court ruled that the state of Washington had done no constitutional harm when it denied a state-funded scholarship to a student studying for the ministry. With regard to religious displays in courthouses and other public buildings, the Rehnquist Court seemingly adopted Justice Sandra Day O’Connor’s somewhat vague proposition that the establishment clause does not forbid religious displays in courthouses and other public buildings unless a “reasonable observer would view them as endorsing religious beliefs or practices.”22 The Court seems to have decided that it will need to look at such things as religious displays—lights, manger scenes, and the like—at public buildings on a case-by-case basis. In 2005, it ruled in one instance that hanging framed copies of the Ten Commandments in a courthouse in Kentucky went too far in promoting a particular set of religious beliefs (McCreary County, Kentucky, et al. v. ACLU). As Justice David Souter put it in his majority opinion, “The reasonable observer could only think that the counties meant to emphasize and celebrate the religious message. . . . The display’s unstinting focus was on religious passages [posted with the Commandments], showing that the counties posted the Commandments precisely because of their sectarian content.” In another ruling handed down the same day (Van Orden v. Perry), the Court allowed a display of a six-foot-high monument of the Ten Commandments in front of the state capitol in Austin because it was one of 40 monuments and historical markers that, in the words of Justice Stephen Breyer, “. . . served a mixed but primarily nonreligious purpose.” In 2012, in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, the Court ruled unanimously that employees of religious organizations who carry out some religious duties—leading services, teaching bible classes, and the like—cannot bring job discrimination suits under federal law. Arguing for a “ministerial exception” to federal employment laws, the justices said their enforcement would be an unconstitutional intrusion of government into the affairs of religious institutions, breaking the wall of separation between church and state. Religious organizations from virtually all denominations in the United States hailed the decision, though worries were expressed by many others that this might mean that teachers of theology in religiousaffiliated colleges, let us say, might not be able to bring suits under federal law for age discrimination or sexual harassment at work.23 Such issues no doubt will be litigated in the years ahead. Waiting in the wings are a range of issues involving the separation of church and state that the Court will eventually consider, given the number of cases that are working their way up from state courts and federal district courts. These include the legitimacy of the words “one nation under God” in the Pledge of Allegiance, and the acceptability of the nondenominational prayers that open the daily sessions in Congress. The point here is fairly straightforward: the debate over where to draw the line that separates church and state is a continuing one in America and is unlikely to ever be resolved once and for all. RELIGION IN PUBLIC SCHOOLS One of the most controversial aspects of constitutional law regarding the establishment of religion concerns school prayer. Although a majority of Americans support allowing a nondenominational prayer or a period of silent prayer in the schools, the Court has consistently ruled against such practices since the early 1960s, perhaps believing that children in school settings, as opposed to adults in other areas of life, are more likely to feel pressure from those conveying religious messages. In Engel v. Vitale (1962), the Court ordered the state of New York to suspend its requirement that all students in public schools recite a nondenominational prayer at the start of each school day. In Stone v. Graham (1980), the Court ruled against posting the Ten Commandments in public school classrooms. In Lee v. Weisman (1992), it ruled against allowing school-sponsored prayer at graduation ceremonies. In Santa Fe Independent School District v. Doe (2000), the Court ruled that 15.1 15.2 15.3 15.4 505 15.1 15.2 15.3 15.4 student-led prayers at school-sponsored events such as football games are not constitutionally permissible because they have the “improper effect of coercing those present to participate in an act of religious worship.” In these and other cases the Court has consistently ruled against officially sponsored prayer in public schools as a violation of the separation of church and state. Returning prayer to the public schools and making schools less secular are very high on the agenda of religious conservatives. Bills supporting voluntary classroom prayer (such as a moment of silent contemplation) are constantly being introduced into Congress and state legislatures, with little success so far. Christian conservatives have also tried without success to pass a school prayer constitutional amendment. In several very religious communities, school officials have simply ignored the Supreme Court and continue to allow prayer in public classrooms. An important battle about religion in the schools concerns attempts by some committed believers to either exclude Darwinian evolutionary biology from the school curriculum or to balance it with alternative interpretations such as “creationism” (the idea that God created the earth as described in the Bible) or “intelligent design” (the idea that the natural world is so complex that it could not have evolved as scientists propose, advocated by the Discovery Institute in Seattle). Because courts at all levels have rejected the teaching of “creationism” in the science curriculum as an improper intrusion of religion into public education, many religious activists have pushed “intelligent design” as an alternative approach that might pass court muster. The Dover, Pennsylvania, school board tried this strategy but lost in federal court. As Judge John Jones put it in his opinion in Kitzmiller v. Dover Area School District (2005), “. . . we conclude that the religious nature of ID [intelligent design] would be readily apparent to an objective observer, adult, or child. . . . The overwhelming evidence at trial established that ID is a religious view, a mere relabeling of creationism, and not a scientific theory.” PRAY AND PLAY 506 Here, a high school coach leads his team in prayer before a game. This practice, quite common across America, raises important questions about the “establishment” clause, especially the degree to which local school authorities in many communities are willing to comply with the doctrine of “separation of church and state.” Should the federal government take a harder line against such practices, or should they be left alone as long as no one complains? With no sign that the tide of religious feeling is about to recede in the United States, debates over school prayer, religious displays in school, and the teaching of evolution will continue for the foreseeable future. The main reason these issues will linger is that neither the courts nor the American people are entirely certain where the line between church and state should be drawn. ◻ Privacy The freedoms addressed so far—speech, press, and religion—are listed in the First Amendment. The freedom to be left alone in our private lives—what is usually referred to as the right to privacy—is nowhere mentioned in the First Amendment or any of the other amendments that make up the Bill of Rights. Nevertheless, most Americans consider the right to privacy to be one of our most precious freedoms; most believe we ought to be spared wiretapping, e-mail snooping, and the regulation of consensual sexual activities in our own homes, for instance. Many (though not all) constitutional scholars believe, moreover, that a right to privacy is inherent in the Bill of Rights, even if it is not explicitly stated; note the prohibitions against illegal searches and seizures and against quartering of troops in our homes, as well as the right to free expression and conscience. Such scholars also point to the Ninth Amendment as evidence that the framers believed in the existence of liberties not specifically mentioned in the Bill of Rights: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court agreed with this position in Griswold v. Connecticut (1965), in which it ruled that a constitutional right to privacy exists when it struck down laws making birth control illegal. Most jurists and legal scholars have come to accept that a fundamental right to privacy exists, though a group of “original intent” conservatives like Justice Clarence Thomas do not agree. Even among those who accept the fundamental right to privacy, there is disagreement on its specific applicability in the areas of abortion, gay and lesbian rights, the right to die, and the security of interpersonal communications during wartime. ABORTION Griswold ’s right to privacy doctrine became the basis for Justice Harry Blackmun’s majority opinion in the landmark case Roe v. Wade (1973), in which the Court ruled in favor of a woman’s right to terminate her pregnancy. Blackmun’s opinion in Roe prohibited the states from interfering with a woman’s decision to have an abortion in the first two trimesters of her pregnancy and prohibited any state actions in the third trimester that might threaten the life or health of the mother. The ruling transformed abortion from a legislative issue into a constitutional issue, from a matter of policy into a matter of rights. It remains one of the most contentious issues in American politics. The background to the ruling was a changing attitude towards abortion in many parts of the United States. By the time Roe was decided, 11 states already had reformed their statutes to allow women to have abortions when the woman’s health, fetal abnormalities, or rape or incest were involved. Four more states (Alaska, Hawaii, Washington, and New York) had already gone further and repealed all prohibitions of abortion. In most state legislatures, however, progress was slow or nonexistent. The litigation over abortion reflected changes in public opinion, pressure by interest groups, and persisting inequities against women. Disapproval of abortion decreased and discussion of abortion increased during the 1960s, even among Roman Catholics.24 Numerous groups worked to reform or to eliminate abortion laws before Roe was decided.25 The pro-choice team benefited from 42 amicus curiae briefs. The medical profession, which had been instrumental in making abortion a crime in the nineteenth century,26 supported reform in the 1960s. The Court’s decision hardly resolved matters. Anti-abortion groups, energized by the repeal of abortion laws, struck back after Roe. Single-issue, anti-abortion politics surfaced in the 1976 and subsequent elections and became an important 15.1 15.2 15.3 15.4 507 15.1 15.2 15.3 15.4 factor in the emergence of a conservative movement in American politics and the rising political power of the Republican Party. In this environment, and with the appointment of several Supreme Court justices concerned about the sweeping character of the Roe ruling, many states began to place restrictions on abortion, ranging from parental notification to waiting periods, counseling about alternatives to abortion, and prohibitions on the use of public money for the procedure. In Webster v. Reproductive Health Services (1989), the Court seemed to invite these restrictions. A few years later, however, in Planned Parenthood v. Casey (1992), the Court ruled that these restrictions cannot go so far as to make abortion impossible to obtain. In the words of Justice Sandra Day O’Connor, while some restrictions are acceptable, none could “place an undue burden” on a woman’s fundamental right to terminate a pregnancy. Furthermore, the Court has ruled in a number of cases since Casey, most recently in 2006, that state and federal laws and regulations restricting abortions must always contain exceptions for situations in which the life or health of the mother is at risk. Many abortion opponents, however, now believe that a direct challenge to Roe might be successful given the addition of two more conservatives to the Court (Roberts in 2005 and Alito in 2006). Friends of Roe were alarmed and its foes were encouraged by the Court’s 5–4 ruling in 2007 upholding the federal Partial-Birth Abortion Act, the first time a specific abortion method had been banned. A similar ban by the state of Nebraska had been rejected by the Court in 2000 when Justice Sandra Day O’Connor was a member. Also, following the sweeping victory of the GOP in the 2010 national elections, several Republican-controlled state legislatures became quite aggressive in passing new laws restricting access to abortion. Five states, for example, simply banned abortions after 20 weeks of gestation on the grounds that fetuses can feel pain at that point in a pregnancy. Eight states now require that a woman seeking an abortion be shown an ultrasound of her fetus—some, such as Texas, mandating vaginal ultrasounds—while three other states made it illegal for private health insurance policies to cover abortion services. Sixteen states said that coverage purchased in the health insurance exchanges created under the new health care reform act could not be used for abortions. Challenges to these laws eventually will make their way to the Supreme Court. There, the justices will have to determine which of these restrictions pass the “undue burden” test. PRIVATE SEXUAL ACTIVITY The Supreme Court had ruled as recently as 1986 in Bowers v. Hardwick that private sexual activity between consenting adults was not a protected right under the constitution. States could, in its view, continue to outlaw certain sexual acts, particularly those involving homosexuals, as the state of Georgia continued to do after winning Bowers. Things changed after privacy was recognized as a fundamental right in Griswold. In Lawrence v. Texas (2003) the Court ruled that state anti-sodomy laws prohibiting consensual gay and lesbian sexual relations are unconstitutional. “Private lives in matters pertaining to sex,” declared Justice Anthony Kennedy in his majority opinion, “are a protected liberty.” This reversal of its own ruling in so short a period of time is unusual in the history of the Court; though, as we saw in this chapter’s section on free speech, it did so recently in the campaign finance case, Citizens United v. Federal Election Commission (2010). 508 THE RIGHT TO DIE It is relatively unclear yet whether the courts will support a privacy-based “right to die.” So far the Supreme Court has refused to endorse or reject the existence of such a right. The status of this potential right was at the heart of the case of Terri Schiavo, a comatose heart attack victim with extensive brain damage, who was dependent on a feeding tube to keep her alive, albeit in a “persistent vegetative state.” The Florida courts had ruled on several occasions that the feeding tube could be removed, per her husband’s wishes; her parents were fighting that decision. A law passed in record time by Congress and signed by President Bush in 2005 insisted that the federal courts take up jurisdiction in the case. But both federal district and circuit courts supported the position of the Florida Supreme Court. In 2004, the Ninth Circuit Court of Appeals upheld Oregon’s assisted suicide law (called the Death with Dignity Act) passed by voters in 1994. In its opinion the justices strongly criticized Attorney General John Ashcroft’s announcement that any doctor prescribing drugs that are used by patients to end their lives would be subject to prosecution under the federal Controlled Substances Act, saying that his action “far exceeds the scope of his authority under federal law.” The Supreme Court upheld the ruling of the Ninth Circuit in 2006 in Gonzales v. Oregon. Interestingly, the ruling was based on very narrow grounds—whether the attorney general could prosecute doctors for prescribing end-of-life drugs—but did not consider whether doctor-assisted suicide was a protected privacy-based right. The Court’s ruling leaves the matter, at least for the time being, in the hands of the states, unless Congress chooses to legislate on the issue. In 2009, the state of Washington passed an assisted suicide law closely modeled on Oregon’s. 15.1 15.2 15.3 15.4 PRIVATE COMMUNICATIONS Finally, there are issues relating to government intrusion on private communications. News in late 2005 about the government’s extensive surveillance operations targeting American citizens in the name of the war on terrorism—whether in a fashion authorized by the USA Patriot Act or in secret, warrantless phone and Internet searches by the NSA—created a firestorm of criticism about possible violation of fundamental American liberties. We will look at this in more detail later in this chapter. So, a right to privacy is well established in principle. Disagreements continue to exist, however, on what this means in practice. ◻ Rights of Those Accused of a Crime The framers were so concerned about protections for individuals suspected, accused, or convicted of a crime that they included important protections in the main body of the Constitution. Article I, as you have learned, prohibits Congress, and by implication, the federal government, from issuing bills of attainder, passing ex post facto laws, or suspending the right of habeas corpus (this last is much in the news because of the types of hearings used for terrorism detainees, something we will look at later in the chapter). Further indication of their concern for the rights of those accused of a crime is the fact that 5 of the 10 amendments that make up the Bill of Rights are about providing such protections. Most Americans today treasure the constitutional rights and liberties that protect innocent individuals—what are generally termed due process protections—from wrongful prosecution and imprisonment. But most Americans also want to control crime as much as possible. The latter concern seems to be winning out; although the United States accounts for a little less than 5 percent of the world’s population, it has almost one-fourth of the world’s total prison population.27 When reading about the status of protections for those accused of a crime, it is well to keep in mind the discussion of constitutional eras.28 The general pattern on constitutional protections in this area of the law follows the pattern on many other rights issues. Warren Court (1953–1969) rulings greatly expanded protections, Burger Court (1969–1986) rulings trimmed protections for defendants, and the Rehnquist Court (1987–2004) quickened the pace of favoring prosecutors. It remains too early to predict the direction of the Roberts Court, though the strongly unified conservative majority and the addition to the Court of Obama nominee and former prosecutor Sonia Sotomayor suggests that further movement away from the Warren Court on protections for those accused of a crime may be coming. UNREASONABLE SEARCHES AND SEIZURES The Fourth Amendment secures the right of all persons against unreasonable searches and seizures and allows the granting of search warrants only if the police can specify evidence of serious lawbreaking that they reasonably expect to find. Until the Warren Court compelled the states to abide by the Fourth Amendment in 1961, they had frequently used searches and seizures that the federal courts would consider “unreasonable” in an effort to control 509 15.1 15.2 exclusionary rule A standard promulgated by the Supreme Court that prevents police and prosecutors from using evidence against a defendant that was obtained in an illegal search. probable cause 15.3 15.4 510 Legal doctrine that refers to a reasonable belief that a crime has been committed. crime. In Mapp v. Ohio (1961), the Supreme Court enunciated that the exclusionary rule to prevent the police and prosecutors from using evidence that had been gained through warrantless and unreasonable searches to convict people must be followed by the states. A majority of the justices believed that the threat of perpetrators’ being freed in cases where unreasonable searches had been conducted eventually would force the police to play by the constitutional rules while conducting their investigations. The Warren Court (1953–1969) demanded that the police get warrants whenever the person to be subjected to a search had a “reasonable expectation of privacy.”29 The Burger Court (1969–1986) limited the places in which privacy could be reasonably expected, allowing searches of moving cars stopped even for routine traffic infractions and of garbage cans set out for collection. The Burger Court authorized a “good-faith” exception to the exclusionary rule, under which prosecutors may introduce evidence obtained illegally if they can show that the police had relied on a warrant that appeared valid but later proved to be invalid.30 The Court allowed another exception for illegally gathered evidence that would have been discovered eventually without the illegal search.31 The Rehnquist Court went well beyond these exceptions. In Murray v. United States (1988), it allowed prosecutors to use products of illegal searches if other evidence unrelated to the illegal evidence would have justified a search warrant. The combination of “good faith,” “inevitable discovery,” and “retroactive probable cause” considerably narrowed the exclusionary rule. The Rehnquist Court (1986–2005) further narrowed the exclusionary rule when it held in Wyoming v. Houghton (1999) that police who have probable cause to search an automobile for illegal substances may also search personal possessions (in this case, a purse) of passengers in the car. In Hudson v. Michigan (2005), the Roberts Court ruled that police need not knock or announce their presence when entering a house with a search warrant. However, the Court has stopped short of taking the exclusionary rule back to pre–Warren Court days. It ruled, for example, that police could not search every driver or car involved in petty traffic offenses. Thus, a bag of marijuana discovered in a search incident to a speeding ticket in Knowles v. Iowa (1998) was excluded as the product of an illegal search. Moreover, the Court ruled in Kyllo v. United States (2001) that police could not use high-technology thermal devices to search through the walls of a house to check for the presence of high-intensity lights used for growing marijuana. Justice Scalia was especially incensed, saying in his opinion that to allow such searches “would leave the homeowner at the mercy of advancing technology . . .” And, in 2009, the Court ruled that the police needed to demonstrate a threat to public safety or a need to preserve evidence to search a compartment in someone’s car. Trying to reconcile the digital age with the traditional protections of the Fourth Amendment, the Court ruled in early 2012 that police had violated a suspect’s protection against unreasonable searches when it attached a GPS tracking device to his car and followed his movements for a month. SELF-INCRIMINATION The Warren Court was instrumental in incorporating Fifth Amendment protections against self-incrimination. It determined, for example, that the privilege not to be forced to incriminate oneself was useless at trial if the police coerced confessions long before the trial took place. To forestall “third-degree” tactics in the station house, the Court detailed a stringent set of procedural guarantees: the famous rights established in Miranda v. Arizona (1966). Once detained by authorities, all persons had to be informed of their rights to remain silent and to consult with an attorney. Although the Burger Court upheld Miranda, it allowed exceptions: it allowed the use of information obtained without “Mirandizing” suspects if the suspects took the stand in their own defense. It also allowed the use of information obtained without Miranda warnings if some immediate threat to public safety had justified immediate questioning and postponing warnings.32 The Rehnquist Court went beyond these exceptions when it held that a coerced confession may be “harmless error” that does not constitute self-incrimination.33 The main principle of the Miranda decision was upheld by the Rehnquist Court, however, in Dickerson v. United States (2000) and reaffirmed in three 2004 decisions. 15.1 15.2 15.3 15.4 “YOU HAVE THE RIGHT TO REMAIN SILENT” An Occupy Wall Street demonstrator in 2012 is arrested and read his rights as defined by the landmark Supreme Court ruling Miranda v. Arizona (1966). Though the requirement that arrestees be notified of their rights has been challenged by police departments ever since the ruling, Miranda remains solidly in place. How have police adjusted to the restrictions on their actions required by Miranda? THE RIGHT TO COUNSEL The Sixth Amendment’s right to counsel was incorporated in two landmark cases. In Powell v. Alabama (1932)—the famed Scottsboro Boys prosecution—the Court ruled that legal counsel must be supplied to all indigent defendants accused of a capital crime (any crime in which the death penalty can be imposed). Before this decision, many poor people in the southern states, especially African Americans, had been tried for and convicted of capital crimes without the benefit of an attorney. Thirty-one years later, in Gideon v. Wainwright (1963), the Court ruled that defendants accused of any felony in state jurisdictions are entitled to a lawyer and that the states must supply a lawyer when a defendant cannot afford to do so. Justice Black wrote the following for a unanimous Court: capital crime Any crime for which death is a possible penalty. Not only . . . precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured of a fair trial unless counsel is provided for him. This seems to be an obvious truth. By incorporating the Sixth Amendment’s guarantee of legal counsel, the Court has ensured that every criminal defendant in the United States can, at least in theory, mount a defense regardless of socioeconomic status. CAPITAL PUNISHMENT The Burger Court examined capital punishment in the states under the Eighth Amendment’s prohibition of “cruel and unusual punishment.” In Furman v. Georgia (1972), a split Court found that the death penalty, as used in the states, constituted “cruel and unusual punishment” because the procedures by which states were sentencing people to death sentence were, in its words, “capricious and arbitrary.” Responding to the Court’s criticisms, Congress and 35 states passed new authorizations of the death penalty aimed at rectifying procedural problems identified by the Court. The Burger Court held in Gregg v. Georgia (1976), after states had changed their sentencing procedures, that capital punishment was not inherently cruel or unusual so long as procedures were nonarbitrary and nondiscriminatory. However, the Court tended to create an “obstacle course” of standards that the states had to meet if they wanted to use the death penalty. Basically, the Court insisted that defendants be given every opportunity to show mitigating circumstances so that as few convicts as possible would be killed. 511 Explore on MyPoliSciLab Should the Government Apply the Death Penalty? he United States is the only advanced democracy that practices capital punishment. Proponents argue that the death penalty is a deterrent to violent crimes, but since 1992, public support for it has declined. A majority of Americans still believe the death penalty should exist, but there are racial differences among supporters. T Death Penalty Supporters by Race 100 Notice how support for the death penalty rises with incidences of violent crime. In an 18-month period, 23 states institute “three-strikes” laws which sentence repeat felony offenders to life without parole. There are subsequently fewer violent criminals on the streets. 1000 Violent Crimes Committed in the U.S. per 100,000 Americans White Supporters of the Death Penalty African American Supporters of the Death Penalty 800 700 70 Bill Clinton’s Community Policing Program puts 100,000 new cops on the streets, violent crime declines. 60 600 50 500 Violent Crime Rate % Favoring the Death Penalty 80 400 40 Historically, the number of African Americans executed each year is about twice their share of the general population. Many African Americans oppose the death penalty because they see it applied in a discriminatory manner. 300 30 74 76 78 80 82 84 86 88 90 92 94 96 98 00 02 04 06 08 10 Year SOURCE: Data from General Social Survey, 1972-2010; Bureau of Justice Statistics, U.S. Department of Justice. Investigate Further Concept How widespread is American support for using the death penalty? A majority of Americans endorse capital punishment, but support is stronger among whites than African Americans. The racial disparities are due in part to the fact that African Americans are more likely to be on death row than whites. 512 Connection Is support for the death penalty related to lower crime rates? When violent crime goes up nationally, so does support for the death penalty because supporters believe it will decrease the crime rate. However, this effect is contested by death penalty opponents and those who see other explanations for less crime. Cause Are there any competing explanations for the decline of crime, besides the death penalty? There are at least three non-death penalty related reasons for the decline of crime: increased federal spending to put more cops on the street, states using stiffer sentencing for repeat felony offenders, and the aging of the population (young people commit more crimes). 15.1 15.2 15.3 15.4 GIDEON’S PETITION Before Clarence Gideon won his case before the Supreme Court in 1963, states did not have to provide attorneys for people accused of a felony. Gideon wrote his appeal letter—shown here—from his prison cell in Florida. The Court agreed with Gideon, incorporating this part of the Sixth Amendment. How did the Court support its decision? The Rehnquist Court at first expedited the use of the death penalty. (Some of the reasons are examined in the “Using the Framework” feature.) In McCleskey v. Kemp (1987), the Court said that statistical evidence that blacks who kill whites are four times more likely to be sentenced to death than whites who kill blacks is not sufficient to prove racism in death penalty cases; individual defendants, it ruled, must show that racism played a role in their specific cases. In Penry v. Lynaugh (1989), the Court allowed the execution of a convicted murderer who had the intelligence of a seven-year-old. In Stanford v. Kentucky (1989), it allowed the execution of a minor who had been convicted of murder. The Rehnquist Court also limited avenues of appeal and delay in death penalty cases. In McCleskey v. Zant (1991), it made delays much less likely by eliminating many means of challenging capital convictions. In Keeney v. Tamayo-Reyes (1992), the Court limited the right of “death row” inmates convicted in state courts to appeal to the Supreme Court. From the middle of the 1960s to the late 1990s, political leaders and public opinion strongly supported the use of the death penalty. In this environment, the Court removed most of the obstacles to its use. It is hardly surprising, then, that the number of people executed in the United States in 1999 reached its highest level (98) since 1976, when the Court reinstated the death penalty, with Texas accounting for more than one-third of the total (see Figure 15.2).34 Much to the surprise of seasoned observers, the Rehnquist Court began in 2002 to pull back from its unstinting support for the death penalty. In Atkins v. Virginia (2002), the Court followed the lead of 18 states in banning the use of the death penalty for mentally retarded defendants, saying, in Justice John Paul Stevens’s majority opinion, that “a national consensus now rejects such executions as excessive and inappropriate” and that “society views mentally retarded offenders as categorically less culpable than the average criminal.” In Ring v. Arizona (2002), the Court overruled the death sentences of more than 160 convicted killers, declaring that only juries, and not judges, can decide on the use of the death penalty for those convicted of capital crimes. In 2005, the Supreme Court struck down death penalty convictions in cases 513 15.2 15.3 15.4 19 7 19 7 7 19 8 79 19 8 19 0 8 19 1 8 19 2 83 19 8 19 4 8 19 5 8 19 6 8 19 7 8 19 8 8 19 9 9 19 0 9 19 1 9 19 2 9 19 3 9 19 4 9 19 5 96 19 9 19 7 9 19 8 9 20 9 0 20 0 0 20 1 02 20 0 20 3 04 20 0 20 5 0 20 6 0 20 7 0 20 8 09 20 10 20 11 15.1 100 90 80 70 60 50 40 30 20 10 0 Year F I G U R E 1 5 . 2 EXECUTIONS IN THE UNITED STATES, 1977–2011 Fueled by fear of violent crime, executions in the United States increased dramatically from the early 1980s to the late 1990s but declined significantly after that as public concerns rose about how fairly the death penalty is used. Source: Bureau of Justice Statistics, “Capital Punishment 2012.” 514 in which it was convinced that a defendant had inadequate legal defense, another in which a defendant was brought to a death penalty sentencing hearing in shackles (terming it “inherently prejudicial”), and yet another in which the defendant was under the age of 18. The Roberts Court has sent mixed signals about the nature of the hurdles it will accept in death sentencing and executions. In 2006, the Court ruled unanimously that states cannot deny the introduction of evidence in capital cases that suggests a person other than ...
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