15 Civil Liberties Policymaking

In May 2002, Attorney General John Ashcroft announced that the government was holding Jose Padilla as an "enemy combatant," allied with al-Qaeda.

• Constitutional law is the most important environmental factor affecting civil liberties policymaking. Civil liberties questions are constitutional questions.
• Because of the constitutional nature of civil liberties policymaking, judges, especially the Supreme Court Justices, are the most important civil liberties policymakers. Therefore the policy preferences of the president affect civil liberties policymaking because the president appoints judges. Legislatures and executives also respond to interest groups and public demands in shaping civil liberties policymaking.

Agenda Building

• Interest groups and other organizations can help set the agenda for civil liberties policymaking. Conservative groups call on the government to get tough on pornography and crime, and to limit access to abortion. Many of the civil liberties disputes reaching the Supreme Court are test cases initiated by groups such as the ACLU.
• Individuals can also raise civil liberties issues to the public agenda. Many criminal justice disputes arise from appeals filed by convicted felons, such as Ernesto Miranda.

Policy Formulation and Adoption

• Many civil liberties policies are formulated and adopted in the executive and legislative branches of government, both at the national level and in the states. After the terrorist attacks of September 11, 2001, for example, Congress passed and President George W. Bush signed the USA Patriot Act, which makes it easier for federal officials to get wiretapping orders from judges to investigate terrorism.
• The courts become involved in civil liberties policymaking only when a civil liberties policy adopted by another unit of government is challenged on constitutional grounds. Court rulings then serve as guidelines for other institutions of government.

Policy Implementation and Evaluation

• A broad range of government entities participates in the implementation of civil liberties policy. The Supreme Court's willingness to allow states to enact school voucher programs effectively moves the policymaking arena from the courthouse to the legislature, the governor’s mansion, and the school district.
• Scholars have completed a number of studies evaluating certain aspects of civil liberties policy. For example, the Liebman study of capital punishment was designed to assess the effectiveness of the death penalty.

Key Terms

Administrative Law

administrative rules adopted by regulatory agencies

Amicus Curiae Or Friend of The Court Brief

written legal arguments presented by parties not directly involved in the case, including interest groups and units of government

Bill of Rights

the first ten amendments to the U.S. Constitution

Capital Punishment

the death penalty

Civil Liberties

the protection of the individual from the unrestricted power of government

Constitutional Law

law that involves the interpretation and application of the Constitution

Double Jeopardy

the government trying a criminal defendant a second time for the same offense after an acquittal in an earlier prosecution

Due Process of Law

the constitutional principle holding that government must follow fair and regular procedures in actions that could lead to an individual’s suffering loss of life, liberty, or property

Exclusionary Rule

the judicial doctrine stating that when the police violate an individual’s constitutional rights, the evidence obtained as a result of police misconduct or error cannot be used against the defendant

Fundamental Right

a constitutional right that is so important that government cannot restrict it unless it can demonstrate a compelling or overriding public interest for so doing

Hate-Crimes Law

a legislative measure that increases penalties for persons convicted of criminal offenses motivated by prejudice based on race, religion, national origin, gender, or sexual orientation

Parental Choice

an educational reform aimed at improving the quality of schools by allowing parents to select the school their children will attend

Probable Cause

the reasonable suspicion based on evidence that a particular search will uncover contraband

Selective Incorporation of The Bill of Rights

the process through which the U.S. Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution to apply most of the provisions of the national Bill of Rights to the states

Statutory Law

law that is written by the legislature

Test Case

a lawsuit initiated to assess the constitutionality of a legislative or executive act

Warrant

an official authorization issued by a judicial officer

Discussion Questions

1. What is the constitutional basis of civil liberties in America?

2. What is the Establishment of Religion Clause? How has it been interpreted by the Supreme Court? To what extent may government constitutionally restrict the free exercise of religion?

3. Under what circumstances can the government limit free expression?

4. What provisions in the Constitution are designed to ensure a fair trial?

5. Is civil liberties policymaking limited to the judicial branch of government? Explain, using examples from the controversy over abortion.

Interactive Activity

Simulation: You Are a Police Officer

Few people deal with civil liberties as frequently as police officers. Each day, the police must make tough decisions about whether or not to deprive individuals of their civil liberties. In this simulation, you will play the role of a New York City police officer confronted with several different scenarios involving civil liberties and constitutional rights. Will you make the right decisions to earn a promotion? Or will your poor decisions leave the Chief of Police with no choice but to fire you?

View Simulation

“Talking About American Government” Podcasts

Author Neal Tannahill discusses the most important concepts in this chapter

• Free Exercise Clause
• Establishment Clause
• Constitutional Right to Privacy