3.6 Amendments: Balancing Individual Freedom with Public Order and Safety

Government has a duty to protect public safety, but the Bill of Rights limits how it can do that. In a typical case, someone claims a law violates their rights, and the government argues the law is needed to protect people. Courts then ask how serious the burden on the right is and how strong and well-supported the government's interest is. Different eras and different justices strike the balance in different places.

The Eighth Amendment bans “cruel and unusual punishments.” The Court interprets this using “evolving standards of decency,” so what counts as cruel can change over time.

In Furman v. Georgia (1972), the Court effectively paused the death penalty nationwide because it was being applied in arbitrary ways. States rewrote their laws to guide juries more carefully, and in Gregg v. Georgia (1976) the Court ruled the death penalty itself is not always cruel and unusual. Since then, the Court has narrowed who can be executed:

• Not people with intellectual disabilities (Atkins v. Virginia, 2002)
• Not people who were under 18 when they committed the crime (Roper v. Simmons, 2005)
• Not for the rape of a child where the victim didn't die (Kennedy v. Louisiana, 2008)
• Juveniles also can't get life without parole for crimes other than murder (2010), and it can't be mandatory for juveniles even in murder cases (2012)

Supporters argue that the death penalty delivers justice for the worst crimes, may deter murder, and reflects the will of voters in states that keep it. Opponents argue that it risks executing innocent people, has been applied unequally by race and income, and is inconsistent with evolving standards of decency. Many states have abolished it, while others continue to use it, a good example of federalism producing different policies.

After Heller and McDonald (3.5), governments can't ban handguns in the home, but they can still regulate guns in some ways. Debates continue over background checks, limits on certain types of weapons and magazines, waiting periods, “red flag” laws that let courts temporarily remove guns from people judged dangerous, and where guns can be carried. Courts now ask whether a regulation fits the nation's historical tradition of gun regulation.

The Fourth Amendment protects against unreasonable searches and seizures and generally requires a warrant based on probable cause. But it was written for physical searches of homes and papers. Technology raises new questions.

Digital metadata is information about communications rather than their content: which numbers you called, when, for how long and from where. After the September 11 attacks, the USA PATRIOT Act (2001) expanded government surveillance powers. In 2013, leaked documents revealed that the National Security Agency had been collecting phone metadata of millions of Americans in bulk. Supporters argued this helped detect terrorist networks; critics argued it was a sweeping search without individual suspicion. The USA FREEDOM Act (2015) ended the NSA's bulk collection, requiring records to stay with phone companies and be requested more specifically.

The Court has also extended privacy protections to digital devices. In Riley v. California (2014), it ruled unanimously that police generally need a warrant to search a cell phone seized during an arrest. In Carpenter v. United States (2018), it ruled that police generally need a warrant to get a person's historical cell-phone location records.