Ch 15 Synopsis

The Challenge of Democracy
Chapter 15 - Order and Civil Liberties
Synopsis

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