civil liberties & civil rights (ch 5)

Points to ponder:

1. For all the attention we lavish on the Bill of Rights, Coleman et al. (169) are right to point out that fundamental civil liberties are protected in the body of text approved by the Founders at the Constitutional Convention in 1787
2. An argument against including a Bill of Rights (171) was not that these are not important liberties but rather the idea that people have natural rights given to them by God or by the natural order of things, including the rights of life, liberty, and property, rights that are basic and fundamental to individuals, inherent to the person, and, given this, the risk was that setting out certain specific rights—say freedom of speech—might imply that other rights not included do not exist; an example of this would be the matter of private sexual behavior—since the Bill of Rights does not say that Congress shall make no law with respect to ____, can adults in the privacy of their homes do _____?
3. The US is somewhat extreme (though this is not necessarily bad) in its attachment to free speech as is suggested in a report on "American exceptionalism" (A. Liptak "Unlike others, US Defends" NYT 12 Jun 08)
4. Recall the rights of citizens to access government information, rights that apply to citizens but which are frequently exercised by the mass media in their coverage and investigation of the news
5. Coleman et al. (169) give only a very general definition of due process which is intended to protect against arbitrary and capricious government actions to the disadvantage of individuals; due process has first a procedural dimension (has the government followed correct procedures?) and a substantive dimension (can the government property take the action it has?)
6. You may note that, in the variety of first amendment controversies, courts frequently use what is generally called a balancing test in which two constitutional rights have to be weighed against each other; an example is the case of a student using a state-sponsored scholarship to attend a seminary--does the scholarship money constitute state endorsement of that seminary’s doctrine, or does denying the scholarship bar the student from exercising his religious vocation?--but it is important to note that balancing tests are ubiquitous in constitutional law, not just in religious freedom cases which may be what is implied by Coleman et al. (183).
7. Similarly, the use of a neutrality test in considering religious freedom cases (184) applies more broadly, for example in freedom of speech cases, and also in freedom of assembly issues
8. As is suggested by Supreme Court rulings on the establishment and free exercise of religion clauses (181-85) the rights of citizens are not fixed by the Constitution but only set by the courts' interpretation of the Constitution at a particular time.
9. Executive orders were introduced in our study of the presidency, and one can see their use in the area of anti-discrimination and affirmative action policies (Coleman, et al.: 193; 196).
10. Many of the equal protection, anti-discrimination issues turn on race (though gender is also a big area of concern): this is a good point at which to recommend that you abandon the idea of race altogether and get used to the concept of ethnicity instead; increasingly social and physical scientists are arguing that race is a meaningless concept, especially if one thinks of it in biological (blood or, to be more sophisticated, genetic) terms); being black or Hispanic or Asian or white is not a matter of biology (which the concept of race has tended to suggest) but a matter of how individuals identify themselves socially or how other identify them socially.
11. The concerns about homeland security after the September 2001 terrorist attacks have led to an expansion of government powers to ward off threats (including a new tactic, alarming to some and dating back to the Clinton administration, called rendition in which terror suspects--those who are not US citizens, mind you--are transported from the jurisdiction of the US to friendly countries which have lesser protections for suspects and more tolerance for torture [see Jane Mayer’s article in the New Yorker]); there is a long and not very pretty history of suspending constitutional practices during, or even after, war, including the period of the Palmer Raids amidst the Red Scare of the 1920s, the internment of US citizens of Japanese descent in World War II (see the case of Korematsu but also the Endo case), and the anti-communist crusade that goes under the head of McCarthyism in the 1950s.
12. The text does not give much attention to property rights, and so it is useful to mention a recent eminent domain case, Kelo v. City of New London; the decision of the court was startling but recall that the Constitution clearly provides, in the Fifth Amendment, for the government’s claim of eminent domain so long as property is taken through “due process” and so long as there is payment of “just compensation; what seems unusual in this case is a new view of “public use” in that property is not taken for a public facility, such as a widened roadway which might require landowners to surrender frontage on their property, but so that other private parties might have property to create enterprises that will generate new jobs or higher property taxes; there is also a federalism issue here

Questions to consider:

1. What is the distinction Coleman et al. make between civil liberties (167-68) and civil rights (190)?
2. What is meant by the "incorporation" process? What are its implications for federalism?
3. What does it mean to say that the First Amendment to the Constitution has a "preferred position," and that, of the First Amendment rights, the right of free speech has its own preferred position?
4. We often think of the rights of the accused (Table 5-2) as protecting those under investigation or on trial for mugging, molesting, and murdering, but were these people about whom the Founding Fathers were thinking when they set down these rights?
5. How does the series of freedom of religion decisions (establishment and exercise) and the series of rulings on the rights of the accused illustrate the importance of who sits on the courts (and who is in a position to nominate and who is in a position to confirm judges)?