The Right to Privacy and Other Civil Liberties

Citizens' Rights and Equal Rights

1. The Constitution lists the powers of and limits on the federal government, but the Bill of Rights lists the guaranteed freedoms of the people. List four rights, each from a different amendment, and explain each. Are the rights you have chosen absolute? What is the Lemon test? Explain. [MO2.1, MO2.3]

The First Amendment guarantees the freedom of speech, assembly, religion, the press and the right to petition the government for the redress of grievances; the Second Amendment guarantees the right to bear arms; the Fifth Amendment guarantees the right to due process and the right against self-incrimination; and, the Eighth Amendment guarantees protection from cruel and unusual punishments. None of these rights, though, are absolute and can be restricted depending on the circumstances. For instance, the First Amendment protections of free speech are limited in those cases where such speech represents a threat to public safety (e.g., yelling “Fire” in a crowded theater).

The Lemon test was established by the Supreme Court to determine whether a law or other government action might promote a particular religion in violation of the First Amendment. The Lemon test has three criteria: 1) The law or action must not result in excessive government entanglement with religion; 2) the law or action cannot inhibit or advance one particular religion over another; and, 3) the law or action must be justified by some secular purpose (Krutz, 2017, 4.2).

2. Consider the Brandenburg v. Ohio case (1969). What is the current test limiting free speech, what is symbolic speech, and is any speech protected? [MO2.1, MO2.3]

In the 1969 case of Brandenburg v. Ohio, the Supreme Court held that speech or writing that directly calls for imminent lawless action, meaning an illegal act that is about to occur, can be restricted. The Court also held that symbolic forms speech, such as wearing clothes with a political symbol or raising a clenched fist in the air, are provided the same protections as written or spoken communications. In sum, just advocating a hypothetical revolution or the use of symbolic speech is insufficient to justify suppression (Krutz, 2017, 4.2).

3. The due process clause has wide application. Explain procedural due process and its relationship to the exclusionary rule, unreasonable searches and seizure, the plain view exception, good faith exceptions, and other rights of the accused. [MO2.1, MO2.3]

Procedural due process requires that government officials must follow established legal procedures and provide individuals with notice and an opportunity to be heard when seeking to deprive them of life, liberty, or property. Part of procedural due process is the exclusionary rule which prohibits the use of evidence obtained through an unconstitutional search or seizure in court and Fourth Amendment protections prevent unreasonable searches and seizures. In addition, the plain view exception permits law enforcement authorities to seize evidence without a warrant in those cases where it is in plain view and discovered during the course of their otherwise lawful presence. Likewise, the good faith exception allows evidence obtained through a search or seizure conducted in good faith to be admissible in court, even if the warrant was later determined invalid. In addition, other rights of the accused such as Miranda rights also serve as protections of individuals' fundamental constitutional rights (Ellison, 2021).

4. Is there a right to privacy specifically listed in the Constitution? Explain. Discuss the importance of the Griswold v. Connecticut case (1965). How did the court define a right that didn’t exist prior to the case? Which amendment was interpreted to include this right? How did this right expand in subsequent years? [MO2.1, MO2.2, MO2.3]

Although the right to privacy is not specifically mentioned in the Constitution, the Supreme Court has recognized a right to privacy reflected in several provisions of the Constitution, including the Fourth Amendment's protection against unreasonable searches and seizures, as well as the First, Fifth, Ninth, and Fourteenth Amendments. The due process clause has been the basis for several cases involving privacy, including Griswold v. Connecticut, where the Supreme Court held that the Constitution protects the right to use contraceptives. Prior to this case, the Court defined a right that did not exist through references to various amendments that included some types of privacy protections. The due process clause has since been interpreted to include substantive due process rights which can include personal liberties such as privacy.

5. Explain the difference between civil liberties and equal rights (civil rights). What do “classes within society” have to do with equal rights? Discuss changes over time in the interpretation of the equal-protection clause of the Fourteenth Amendment. [MO2.1, MO2.2, MO2.3, MO2.4]

Civil rights are not in the Bill of Rights but are rather legal protections such as the right to vote. By contrast, civil liberties such as the freedom of speech are outlined in the Bill of Rights (Civil Rights, 2023). The term “classes within society” refers to the notion that some groups of people may be vulnerable to unequal or discriminatory treatment based on their race, religion, gender, national origin, or sexual orientation. The Supreme Court initially held a narrow view of the equal protection clause, but this has since been expanded to include equal rights in education (outlawing “separate but equal”) and marriage (permitting same-sex and interracial marriages).

6. With regard to equal protection of various classes of people, the Court applies the rational basis test or the strict-scrutiny test. Explain rational basis and strict-scrutiny as well as what it means to say that race and national origin are suspect classifications. [MO2.2, MO2.3, MO2.4]

Rational basis is a test that is used to ensure that a government action or law has a plausible justification, typically in cases that do not involve a suspect classification while the strict-scrutiny test holds that the government must show that a government action or law has a legitimate interest that cannot be achieved with less onerous methods. Subject classifications are individual characteristics such as national origin or race that have historically been used for police profiling.

7. Explain de jure discrimination and de facto discrimination. How did affirmative action programs attempt to end both? Summarize Bakke v. California (1978). What impact did it have on affirmative action programs? [MO2.2, MO2.4]

De jure discrimination is overt such as actions taken by law enforcement authorities while de facto discrimination is origin-neutral discrimination such as segregated housing or educational facilities based on policies or laws that are not discriminatory on their face (Muller, 2017). In Bakke v. California, the Supreme Court upheld affirmative action and held that colleges and universities were permitted to take race into account when making admissions decisions but they could not set racial quotas since this would violate the Equal Protection Clause (Krutz, 2017, 5.2).