• Civil Rights and Civil Liberties – The Strange Case of Incorporation
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    Civil Rights and Civil Liberties – The Strange Case of Incorporation

    >>Incorporation, which is the process of applying provisions of the Bill of Rights against the states in the same way that they have always applied against the national government, is a central feature of the larger story of the development of Civil Rights & Civil Liberties in the United States. We have to remember that the Bill of Rights starts off with “Congress shall make no law,” implying that the subsequent rights limit the national, not the state governments. As we’ll see in these sections, the ideas of Incorporation of the Bill of Rights start off in the early republic but are uniformly rejected. Chief Justice John Marshall, as you’ll…

  • Civil Rights and Civil Liberties – Fifth Amendment – Shh! The Right to Remain Silent
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    Civil Rights and Civil Liberties – Fifth Amendment – Shh! The Right to Remain Silent

    >>The part of the Fifth Amendment to the United States Constitution that we’ll be discussing this week guarantees that you shall not be compelled in any criminal case to be a witness against yourself. The historical origins of this right run deep into British and European history, going back at least to the Inquisition, when many were forced to change their religion or face torture and death. There are, however, other more modern theoretical reasons that ground the right against self-incrimination. One is simple procedural fairness: for there to be a fair and competitive trial against an individual, there has to be this basic notion of non self-incrimination. Another is…

  • Civil Rights and Civil Liberties – 1st Amendment – Let Us Pray: The Establishment Clause
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    Civil Rights and Civil Liberties – 1st Amendment – Let Us Pray: The Establishment Clause

    >>Dr. Justin Wert: The 1st Amendment’s religion clause seems to pull us in two different directions: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses seem to protect two different rights — not one general right. As we’ll see, the application or enforcement of one of those rights can often implicate the other. Guaranteeing one’s free exercise rights, for example, can sometimes put the government in a position where it seems that its promoting one religion over another. The United States has a unique history with respect to religious freedom. As many of you already know, many of the first…

  • Civil Rights and Civil Liberties – Where Do New Rights Come From?
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    Civil Rights and Civil Liberties – Where Do New Rights Come From?

    >>Like so many other concepts in constitutional law the Right to Privacy is linked to vying interpretations of what the constitution means. That we now recognize and protect not only traditional privacy rights against the state — like expectations of privacy grounded in property rights — but also privacy rights in marriage and personal relationships; a right to privacy that protects a woman’s right to choose whether to terminate her pregnancy; privacy rights in same-sex relationships; and even a limited privacy right in end of life decisions, shows just how successful a more contemporary interpretation of the Constitution has been over the last 40 years. But the criticisms of this…

  • Civil Rights and Civil Liberties – 1st Amendment – Do We Really Believe It Says What it Means?
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    Civil Rights and Civil Liberties – 1st Amendment – Do We Really Believe It Says What it Means?

    >>Dr. Justin Wert: There’s an inevitable tension in the 1st Amendment between the two religion clauses in seeking both to prevent an establishment of religion and guarantee the free exercise of religion. In many cases the state, the government itself, is in a catch 22 position as it carries out its normal duties. Take for example a state’s decision to provide workers compensation insurance for workers. It applies to everyone who works and makes no distinctions between or among those it covers. Moreover, in administering the program properly and efficiently the state has determined that those who do not comply with the requirements of the legislation will not receive it’s…

  • Civil Rights and Civil Liberties – 1st Amendment – Free Speech
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    Civil Rights and Civil Liberties – 1st Amendment – Free Speech

    Our current standard for determining the constitutionality of legislation restricting or punishing speech — which is that the speech in question has to result in “imminent lawless action” — was formulated by the Supreme Court in 1969 in a case called Brandenburg v Ohio — a mere 45 years ago.  That means that it was not until the second half of the twentieth century that we developed our current approach to free speech. But, why did it take so long?  This question is important not only for understanding the history and development of this free speech right itself, but it’s also important for understanding how Civil Rights & Civil Liberties…

  • Civil Rights and Civil Liberties – 4th Amendment – Cars and Bugs, Part I
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    Civil Rights and Civil Liberties – 4th Amendment – Cars and Bugs, Part I

    >>The text of the 4th Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The 4th Amendment seems to be the most detailed and specific of any of the provisions of the Bill of Rights, but as we’ll see, there’s a lot of disagreement about the 4th Amendment’s scope, purpose, and meaning. And these points of disagreement will only become more acute with…