V. Civil Liberties

1948 ◽  
Vol 42 (1) ◽  
pp. 42-52
Author(s):  
Robert E. Cushman
Keyword(s):  
Civil Rights ◽  
First Amendment ◽  
Due Process ◽  
Civil Liberty ◽  
Civil Liberties ◽  
Freedom Of Speech ◽  
Freedom Of Religion ◽  
Military Power ◽  
Procedural Due Process ◽  
The Supreme Court

The Supreme Court's decisions dealing with civil liberties in the ten years under review fall into four groups: (1) cases involving the rights protected by the First Amendment—freedom of religion, speech, press, and assembly; (2) those concerned with racial discrimination; (3) cases enlarging the power of the federal government to protect civil rights against invasion by private persons; (4) war-time cases arising out of conflicts between civil liberty and military power. Decisions dealing with procedural due process and other rights of those accused of crime are discussed in another part of this symposium.I. FIRST AMENDMENT—FREEDOM OF RELIGION, SPEECH, PRESS, AND ASSEMBLYDuring the decade we are examining, the Supreme Court not only has decided a substantial number of cases involving freedom of speech, press, and religion, but it has developed a new and important judicial philosophy or doctrine with respect to them. In this judicial doctrine, three principles are fused. The first is that the four liberties protected by the First Amendment are so indispensable to the democratic process and to the preservation of the freedom of our people that they occupy a preferred place in our scheme of constitutional values.

scholarly journals The Gifted Judge: An Analysis of the Judicial Career of Robert H. Jackson

1969 ◽  
pp. 880
Author(s):  
Graeme A. Barry
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Separation Of Powers ◽  
Civil Liberties ◽  
Historical Analysis ◽  
The United States ◽  
Economic Regulation ◽  
International Criminal Tribunals ◽  
Procedural Due Process ◽  
Nuremberg Trials

The author undertakes an historical analysis of the judicial achievements of Robert H. Jackson, Associate Justice of the United States Supreme Court from 1941 until his sudden death in 1954. Justice Jackson's approach to the nature of the judicial function, to judicial review and to the question of extrajudicial activities sheds light on contemporary debate in these areas. Despite being undoubtedly influenced by his place on the "Roosevelt Court," Jackson was a strong individualist, which the author believes accounts for his "maverick" status on the Court Justice Jackson's prominent judicial opinions relating to economic regulation, procedural due process, civil liberties and the separation of powers doctrine reveal how he addressed the inherent tension between judicial review and democracy in the American system of government. The effects of extrajudicial activities are explored with reference to his key role at the Nuremberg Trials, and the appointment of Madam Justice Louise Arbour to serve as Prosecutor for the International Criminal Tribunals.

The Supreme Court in the Era of Bifurcated Review III

2019 ◽  
pp. 510-599
Author(s):  
G. Edward White
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Due Process ◽  
Freedom Of Religion ◽  
The Supreme Court

The Supreme Court’s decisions interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments followed an uneven pattern in the period covered in this volume. From a posture of aggressive review in cases posing due process challenges to state and judicial legislation, the court retreated to one of deference when the legislation affected “social and economic transactions.” But in other cases, such as when free speech and freedom of religion were restricted by legislative or administrative policies, the Court retained an aggressive posture. Eventually, after initially announcing that it eschewed “substantive” interpretations of the Due Process Clauses, the Court began advancing those interpretations in cases involving restrictions on the use of contraceptives and abortion decisions.

The Pornography/Civil Rights Ordinance v. The BOG: And the Winner Is…?

Hypatia ◽  
1992 ◽  
Vol 7 (3) ◽  
pp. 94-109
Author(s):  
Melinda Vadas
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Speech Act ◽  
The Supreme Court

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of making pornography.

Enough is enough: the UK Prevent Strategy and normative invalidation

2018 ◽  
Vol 3 (03) ◽  
pp. 326-343 ◽  
Author(s):  
Michelle Bentley
Keyword(s):  
Civil Rights ◽  
Prime Minister ◽  
Civil Liberties ◽  
Freedom Of Speech ◽  
Security Measures ◽  
Essential Characteristic ◽  
Rhetorical Strategy ◽  
Strategic Narratives ◽  
The Uk ◽  
Theresa May

AbstractThe clash between national security and civil rights comprises one of the most controversial aspects of counter-radicalisation strategy. Analysts present this as a conflict between the need for restrictive security measures (for example, surveillance) and the need to uphold civil liberties (for example, privacy and freedom of speech). In responding to this dilemma, the article examines how this binary normative struggle impacts on the rhetorical presentation of counter-radicalisation policies – in particular, the UK Prevent Strategy and the rhetoric employed by UK Prime Minister and former Home Secretary, Theresa May. It argues that the normative environment has obliged May to construct rhetoric within the context of, what is termed here, normative invalidation. In facing two comparably compelling and related norms of action, May is necessarily required to invalidate or neutralise any norm not adhered to as an essential characteristic of rhetorical strategy. This is discussed in relation to the Strategic Narratives paradigm.

scholarly journals Freedom of Speech and Injunctions in Intellectual Property Cases

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Intellectual Property ◽  
First Amendment ◽  
Due Process ◽  
Freedom Of Speech ◽  
Copyright Law ◽  
Fair Use ◽  
Irreparable Harm ◽  
Commercial Advertising ◽  
The One ◽  
Prior Restraint

Preliminary injunctions against libel, obscenity, and other kinds of speechare generally considered unconstitutional prior restraints. Never mind thata libel may inflict truly irreparable harm on you: The most you can hopefor is damages, or perhaps a permanent injunction after final adjudication-- not preliminary relief.And yet in copyright and other intellectual property cases, preliminaryinjunctions are routine. We argue that the prior restraint doctrine hassomething to say about that, too. Though copyright law (like libel andobscenity law), is a constitutionally permissible speech restriction, the"First Amendment Due Process" rule against prior restraints applies even tosuch permissible restrictions.We argue that preliminary injunctions in copyright cases are generallyunconstitutional; the one exception is cases where there's no controversyover substantial similarity of expression or fair use (for instance, wherethe question turns only on whether defendant had the requisite license). Wealso argue the same about right of publicity cases, trademark cases, andtrade secret cases, except possibly cases (such as many trademark cases)that involve commercial advertising. We believe this conclusion is dictatedby the Court's prior restraint doctrine, and also makes good FirstAmendment policy sense.

The Hughes Court

2022 ◽  
Author(s):  
Mark V. Tushnet
Keyword(s):  
Civil Rights ◽  
Constitutional Law ◽  
Civil Liberties ◽  
Administrative Law ◽  
Public Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Jurisprudence ◽  
Constitutional Revolution ◽  
Comprehensive Study

The Hughes Court: From Progressivism to Pluralism, 1930 to 1941 describes the closing of one era in constitutional jurisprudence and the opening of another. This comprehensive study of the Supreme Court from 1930 to 1941 – when Charles Evans Hughes was Chief Justice – shows how nearly all justices, even the most conservative, accepted the broad premises of a Progressive theory of government and the Constitution. The Progressive view gradually increased its hold throughout the decade, but at its end, interest group pluralism began to influence the law. By 1941, constitutional and public law was discernibly different from what it had been in 1930, but there was no sharp or instantaneous Constitutional Revolution in 1937 despite claims to the contrary. This study supports its conclusions by examining the Court's work in constitutional law, administrative law, the law of justiciability, civil rights and civil liberties, and statutory interpretation.

The U.S. Supreme Court Decisions

2020 ◽  
pp. 144-178
Author(s):  
Donald W. Rogers
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Civil Liberties ◽  
Fourteenth Amendment ◽  
District Court ◽  
Circuit Court ◽  
Court Of Appeals ◽  
The Supreme Court ◽  
Federal Jurisdiction ◽  
The U.S

This chapter traces Hague’s appeal through the Third Circuit Court of Appeals into the U.S. Supreme Court under Chief Justice Charles Evans Hughes, showing how the Hughes court’s inner dynamics explain affirmation of the district court injunction. Observing flux in court personnel and law, the chapter shows that both courts embraced the contemporaneous civil liberties revolution by defending worker speech and assembly rights, but it reveals the Supreme Court as divided over constitutional logic. Justice Owen Roberts’s plurality opinion upheld speech and assembly rights under the Fourteenth Amendment privileges and immunities clause, Justice Harlan Fiske Stone’s concurrence incorporated the First Amendment into the Fourteenth Amendment due-process clause, and dissenters rejected federal jurisdiction. The ruling reflected the contentious evolution of civil liberties jurisprudence, not antiboss or labor law politics.

Ideological Divisiveness in Criminal Procedure Cases

2016 ◽  
Vol 41 (4) ◽  
pp. 409-426
Author(s):  
Kevin G. Buckler ◽  
Elizabeth L. Gilmore ◽  
Michael R. Cavanaugh ◽  
Shannon K. Fowler
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
First Amendment ◽  
Due Process ◽  
Criminal Procedure ◽  
Appellate Courts ◽  
Majority Opinion ◽  
Weighted Measure ◽  
Scholarly Attention ◽  
Comparison Data

Limited scholarly attention has been devoted to an understanding of ideology in criminal procedure cases decided by appellate courts. This study focuses on U.S. Supreme Court outcomes and develops a measurement of ideological divisiveness in the voting patterns of the justices for the decisions announced for the 1994–2014 terms of the Court. The analysis approaches the issue of ideological divisiveness in voting patterns through development of a Case Ideology Divisiveness score that is a weighted measure of vote divisiveness (the average justice deviation from the majority opinion) and depth of divisiveness (the number of unique concurring and dissenting opinions filed). The score is reported for criminal procedure, civil rights, First Amendment, and due process cases. The analysis then examines the score for 16 categories of criminal procedure case types and reports mean comparison data. Trends and implications are discussed.

The Rights of Majorities and of Minorities in the 1961 Term of the Supreme Court

1963 ◽  
Vol 57 (1) ◽  
pp. 98-115
Author(s):  
Benjamin F. Wright
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Civil Liberties ◽  
The United States ◽  
Point Of View ◽  
State Legislation ◽  
Annual Survey ◽  
The Social ◽  
The Supreme Court ◽  
The Guardian

But for two decisions, the 1961 term of the Supreme Court could have been characterized as one of the least interesting in recent years. Apart from Baker v. Carr and Engel v. Vitale no decision stands out as a major interpretation either of the Constitution or of national or state legislation. Not that there was any shortage of constitutional cases. In at least thirty such the Court gave decisions and written opinions. In a number of instances, some of which will be examined presently, acts of state legislation were held invalid. Some 63 cases involved the interpretation of acts of Congress; in none was a statute held unconstitutional. There was, in other words, a continuation of the point of view which the Court adopted in the spring of 1937, rather than a hostile disposition toward both state and national legislation dealing positively with the social and economic problems coming in the wake of that new (to the United States) combination of factors, the industrialization of much of the country and the acceptance of most assumptions of nineteenth century humanitarianism.Last year Professor McCloskey, writing in this Review on the 1960 term, quite properly limited himself to the consideration of cases dealing with civil rights. Yet before Charles Evans Hughes became Chief Justice in 1930, so few such cases arose that no one would have devoted even a major portion of an annual survey to them. Indeed, before the Civil War there was only one obscure case in which an act of a territorial legislature was held void as contrary to the guarantees of civil rights in the Constitution, and none involving either Congressional or state legislation. A few emerged in the decade after that War, but it was only with such cases as Strormberg v. California, Near v. Minnesota, Powell v. Alabama, Grosjean v. American Press Co., and DeJonge v. Oregon that the Supreme Court actively began to be the guardian of civil liberties.

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