Now for the notes on Civil Liberties...
Civil Liberties – what are they?
Vs. Civil Rights
n Civil liberties adhere to individuals rather than groups
n Negative vs Positive freedom:
o Civil Liberties are about what gov’t must NOT do, civil rights are largely about what gov’t must do
Types of Civil Liberties
n “Congress Shall make no law” – abridging
o Freedom of speech
o Freedom of the press
o Freedom to bear arms (disputed)
n Legal Rights, Due Process
o Against unreasonable search and seizure, self-incrimination, etc
o Property rights
§ Due process
§ Just compensation
§ Now: Eminent Domain: the right of the gov’t to seize private property for public use (to build housing, roads, schools, etc)
n Fourteenth Amendment (1868)
o Established equal protection under the laws
§ Extension of the bill of rights to the states
· No state shall deny anyone equal protection under the laws
n Civil Liberties: Absolute or Competing claims?
o Competing claims
§ Individual rights vs general welfare
§ Competing rights – right of the press vs right of public officials
o Trends (to 9/11)
§ Trend has been towards EXPANSION of the definition and scope of civil liberties
§ Fewer gov’t actions on behalf of general interest can justify limiting civil liberties
§ More and more issues redefined as competing rights claims – the legalization of politics
n Legalization of politics – the implications
o Positive aspects of legalization
§ Offers access
§ Not based on public opinion
o Negative aspects
§ Constrains general welfare
§ Atomizing (making issues much smaller)
§ Style of politics
· Adversarial
· Not prone to compromise
n Security and Civil Liberties – an altered balance post 9/11
o Order/security vs individual liberty
o Immediate gov’t reaction to 9/11
§ Detention of citizens without laying charges
§ Order that solicitor-client privilege would not be honored by Justice Department
§ Refusing to provide name, location of detention or number of those arrested
o Overwhelming public support
§ 86% viewing gov’t action as appropriate (Newsweek)
o
§ Ratification of Ashcroft response
· Broadened gov’t ability to implement wiretapping
· Surveillance of emails and computers
· Power to detain and deport foreigners
· Increased power to detect money laundering
§ Received overwhelming support in House and Senate
Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.--Benjamin Franklin (1706-1790)
There is danger that, if the [Supreme Court] does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.--Justice Robert H. Jackson, dissenting in Terminiello v. City of Chicago (1949)
- Which is more important, providing domestic security against terrorism or preserving the civil liberties guaranteed by the U.S. Constitution? Why?
- How would you feel if you were directly affected by some of the new powers granted under the USA PATRIOT Act (i.e. wiretaps, access to personal records)?
What about ethnic profiling?
"As far as ethnic profiling; it's very troubling. It pains me to say this, but some of it may have to be done. We just have to recognize that we cannot bend over backwards in our innate American fairness to overlook that there are some people trying to hurt us." –
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