Government and Politics of the USA
Week 3 TT:
Dr Simon Boucher ~ bouches@tcd.ie

Readings on Race, Civil Liberties / Rights
Required reading…
• McKay chapter 15: “Regulating Morality: Civil rights, liberties and the conscience issues”
• LGW chapter 4: “The Constitution and the Individual: The
Bill of Rights, Civil Liberties and Civil Rights”
• Singh chapter 24: “Race and Multiculturalism”
• MHW chapter 10: “Affirmative Action- the Continuing
Drama”
Optional reading…
• Stephen Steinberg – “Race and Ethnicity in the United
States: Issues and Debates” (2000)
• Robert Post and Michael Rogin – “Race and Representation:
Affirmative Action” (1998)
Additional resources…
• www.naacp.org

Hillary term essay feedback

Distinguishing civil liberties and civil rights
In most countries,
“civil rights” and “civil liberties” are used interchangeably – not in the US….
CIVIL LIBERTIES
• About guaranteeing individual freedom
• Protection FROM government
CIVIL RIGHTS
• About guaranteeing equality
• Protection BY government

Background to the Bill of Rights
• Following the Philadelphia Convention, anti-Federalists argued against the
Constitution on the grounds that the strong national government was a threat to individual rights
• This appealed to Americans’ concern for tyranny and the importance of individualism
• Several states demanded amendment before they would ratify
• Madison provided a set of rights to pre-empt another convention based on
Virginia’s Declaration of Rights and state amendment recommendations

Content of the Bill of Rights
The Bill of Rights protects citizens against their government…
Substantive
Liberties
• Freedom of speech
• Freedom of the press
• Freedom of religion
• Right to bear arms
• Freedom of assembly
• Freedom of petition
Procedural
Liberties
Defined a
“private sphere of personal liberty, free of governmental restriction”

Limits to the Bill of Rights
However the Bill of Rights faced certain limitations
No right is absolute… the only promise is that the SC will give
“strict scrutiny” to any action taken that limits or abridge a right
Initially the protection afforded via the
Bill of Rights was limited, only applying to the federal government

Nationalising Bill of Rights
KEY CONTROVERSY IN CIVIL LIBERTIES:
Is the Bill of Rights equally applicable to federal and state government?
• Initially US citizens were considered to have dual citizenship – confirmed in Barron v Baltimore (1833)
• Therefore BoR only applied to federal government – rights not “nationalised”
• After Civil War, 14 th amendment imposed BoR on states, providing for “a single national citizenship” – civil liberties couldn’t vary dramatically from state to state
• But SC ignored the 14 th for over 100 years – maintaining the “Barron v Baltimore” status quo

Nationalising Bill of Rights
KEY CONTROVERSY IN CIVIL LIBERTIES:
Is the Bill of Rights equally applicable to federal and state government?
• Over time individual rights were gradually “incorporated” under the 14 th amendment - nationalising their effect
• 1960s – “the 2 nd Constitutional Revolution” – in a series of cases the newly liberal SC actively applied the 14 th amendment to remaining rights, incorporating them into the
Constitution,

Civil liberties today
The Bill of Rights is now fully “nationalised”. However…
• History indicates US civil liberties are
NOT carved in stone. They are fragile, and subject to constant judicial interpretation
• Individual liberties endure intense scrutiny – e.g. the right to privacy
(abortion)
• Civil liberties need to be vigilantly safeguarded , especially at times of war
• Remember: US courts are political institutions, and judges are politicians … Just as a liberal SC nationalised the BoR, a conservative one may denationalise certain rights…

The Patriot Act
• Passed (opportunistically?) after 9/11
• Expanded the authority of law enforcement agencies for the purpose of fighting terrorism
• Widely criticized for weakening protections of civil liberties, such as…
– Authorization of indefinite detentions of immigrants
– “Sneak and peek” searches without permission or knowledge
– Expanded powers for searching telephone, email and financial records without a court order
• The Act has had several legal challenges, and
Federal courts have ruled several provisions unconstitutional
• The Act was renewed by the Republican
Congress without major changes in March 06

The candidates and the Patriot Act
• Hillary: voted for the Patriot Act in
2001 and to re-authorise it in 2006, but has criticised many of its measures
• Obama: wasn’t in the Senate in
2001; worked to change parts of the
Law but also voted to re-authorise it
• McCain: voted for the Patriot Act in
2001, to expand it in 2005, and to reauthorise it in 2006

Government and Politics of the USA
Week 3 TT:
Dr Simon Boucher ~ bouches@tcd.ie

Early history of the race issue
• African Americans - the only ethnic group to come to America involuntarily
• Traders brought West African slaves due to labour shortages amongst the colonists
• Slavery controversial from the beginning – a major point of contention during the Constitutional
Convention – almost outlawed
• “Great Compromise” – Congress could not prohibit the importation of slaves before 1808. Slaves worth
3/5 th of a person for representation purposes

Dredd Scott
• The slavery issue remained controversial between “slave” and
“free” states up till 1860s
• Dredd Scott v Sandford (1857) set scene for civil war…
– Established that slaves were property
– Established that no black could be a US citizen, even if they were born and lived in a non-slave state
• Following the Civil War (1861-65) Constitutional amendments overturned Dredd Scott
– 13 th (1865) abolished slavery
– 14 th (1868) established birthright citizenship
– 15 th (1870) – prohibited states from denying citizens the right to vote because of their race or previous slavery

The 14 th Amendment
“No state shall make or enforce any law which shall… Deny to any person within its jurisdiction the equal protection of the laws”
• Civil rights became part of the constitution with the adoption of the 14 th amendment in 1868
• Civil rights are obligations imposed on the government by the equal protection of the laws clause of the 14 th amendment, to take positive action to protect citizens from the illegal actions of other citizens or government agencies
• The 14 th amendment guarantees equal citizenship and protects citizens from discrimination

The establishment resists…
• Despite the clarity of the 14 th amendment, the SC was not willing to enforce it
• The SC proceeded to declare the 1875 Civil Rights Act unconstitutional
• In the infamous Plessy v
Ferguson (1896) the SC went further, upholding a Louisiana statute that required segregation of the races on public transport. Whites and blacks were considered “separate but equal”
• Southern states evolved into dual societies via the imposition of “Jim Crow Laws”

“Jim Crow Laws”
• State and local laws enacted in the
Southern states and enforced between 1876 and 1965
• Excluded blacks from full social participation – mandated "separate but equal" status.
• In reality, this led to treatment and facilities that were almost always inferior to those provided for whites
• Typically required that public schools, public places and public transport have separate buildings, toilets, and restaurants for whites and blacks
• Jim Crow was repealed by via “Brown v Board” in 1954 and the Civil Rights
Acts of the 1960s

“Jim Crow Laws”
Alabama
"All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races."
Georgia
"All persons licensed to conduct a restaurant, shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room or serve the two races anywhere under the same license."
Mississippi
"Any person...who shall be guilty of printing, publishing or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and Negroes, shall be guilty of a misdemeanor and subject to fine"

Turning of the Tide
World War 2 helped reinforce the perception among blacks that conditions in the South were unacceptable
• Mobilised many African American males
• Induced mass migration of blacks to the war factories of the North
The SC became stricter about the “equal” facilities which states had to provide under the “separate but equal” rule - but the rule’s underlying logic wasn’t queried
NAACP – by 1940s was actively supporting lawsuits aimed at discriminatory practices

Brown v Board (1954)
• Breakthrough SC case
• Involved 8-year-old girl required to attend an all-black school 5 miles away rather than an all-white school closer to home
• Invoking the equal protection clause of the 14 th Amendment –
SC decided that separate facilities in education were “inherently unequal”
• First application of 14 th amendment since 1868 – the end of “separate but equal”
• In a related decision in 1955 the SC ordered Southern
Schools to “desegregate with all deliberate speed”
• Provoked huge protests in the South, clear efforts made to obstruct implementing the law

Brown v Board (1954)
Altered the US Constitutional framework in 2 respects:
• States no longer have the power to use race as a basis of discrimination in law
• The Federal government had the power (and eventually the obligation) to intervene with strict regulatory policies against the discriminatory actions of state or local government

Brown v Board

Ongoing resistance
• Initially, most states refused to cooperate until sued, and developed many ingenious schemes to delay obedience
• In 1955 the SC ordered all local authorities to “make a prompt and reasonable start” and district courts to “proceed with all deliberative speed” towards desegregation; still for 10 years progress was agonisingly slow
• It became obvious that the goal of
“equal protection” required positive, or “affirmative” action and that legislation was required

“Freedom is not enough”

“Freedom is not enough”
Laws
• 1964 Civil Rights Act- power of the purse –denied federal monies to organisations, individuals or programmes practicing discrimination
• 1965 Voting Rights Act– made illegal all laws denying blacks equal access to the ballot
Affirmative Action
• LBJ argued that outlawing discrimination wouldn’t result in equal opportunities – proposed the
“Philadelphia Plan” – the first effort of
“affirmative action”
• LBJ left office before it could be implemented

Affirmative action
“Compensatory action to overcome the consequences of past discrimination”
• Involves…
– Positive discrimination in which race is taken into account, but for compensatory action, rather than mistreatment
– Compensatory action to favour members of the disadvantaged group who themselves may not have suffered discrimination
– Quotas may be, but are not necessarily, involved in AA policies
• In 1968 Nixon unexpectedly implemented and expanded
LBJ’s Philadelphia Plan. However his motives were questionable, and he soon proceeded to attack AA quotas
• AA extended in the 1970s, dividing civil rights activists – was
“reverse discrimination” just?

Arguments for affirmative action
• Many believe that society continues to routinely positively discriminate in favour of white (males) –WASPs continue to economically and politically dominate America
• This course is maintained by denying minorities the chance to maximise their potential - particularly in schools
• They argue the goal of AA is not to privilege minorities over the majority nor is it simply reverse racism , but to create a colour-blind society - which in the short term requires programmes which temporarily privilege minorities
…AA simply “helps minorities find their voice”

Arguments against affirmative action
• How can AA create a colour-blind society when it classifies people by the colour of their skin?
• AA heightens peoples’ awareness of their differences, actually aggravating racism
• AA is incompatible with America’s traditional values of capitalism, freedom and choice – businesses should be allowed hire and fire purely on the basis of merit
• For every place held for a minority, an equally or better qualified person is overlooked
• People who benefit from AA are usually already privileged members of the minority groups –not the truly under-privileged. Ironically these individuals are usually considerably more privileged that poor whites

Affirmative action – is there a solution?
• Since the mid 1970s the SC has progressively weakened AA in a series of decisions, particularly stating that “any rigid numerical quota” was suspect
• Clinton “mend it, don’t end it” - all AA policies were reviewed; most were found fair, but had to serve a
“compelling state interest”
• A majority of blacks and whites favour programmes that help blacks succeed, but both groups oppose quotas
• Key to future AA - ensure those who benefit are truly, demonstrably oppressed …
– How does one judge between the oppressed and nonoppressed?
– How does one measure different levels of oppression?
Can class and race be combined as an AA tool?

Other controversial race-related issues
• Busing
• School curriculum
• Re-districting

A closing thought on race…
• In 1960, 85% of Americans were white…
• In 2000, 69% of Americans were white…
• By 2050 whites will be a minority

“Universalising” civil rights
• Since the 1960s the success of the
African American civil rights movement has encouraged other groups to fight for their civil rights
• Under Title 7 of the 1964 Civil Rights
Act, any group can try and convert their grievances into a question of rights – by establishing that their membership in a group is an unreasonable basis for discrimination
• “Universalisation” has become the new frontier of the civil rights struggle; the 1964 Act has been used as a basis for defending civil rights based on gender, disability, sexual orientation, age and religion
• Ironically the conservative Burger Court established gender as a major civil rights issue by applying the 1964 Act to women
Universalising civil rights reflects the importance of “equality of opportunity” in US society

Government and Politics of the USA
Week 3 TT:
Dr Simon Boucher ~ bouches@tcd.ie

Race and the 2008 election
• The voting demographics
• Bill Clinton and race
• Geraldine Ferraro and race
• Reverend Jeremiah Wright and race
• Obama – the Philadelphia speech

2008 voting demographics
• Obama routinely wins 80% + of black voters
• Hillary dominates amongst Hispanic and
Asian voters ( 65-70% in many states)
• The white vote has split from state to state and according to gender

Bill Clinton and race in 2008
• Bill was originally considered
“the first black President”
• Unusually for a former President, has occasionally been used as an attack dog by Hillary’s campaign
• During the SC Primary (and after), was considered to have made a series of implicitly racist statements
• Reaction to Bill and outcome for
Hillary very negative

Geraldine Ferraro and race in 2008
• 1988 Democratic VP nominee
• Member of Hillary’s Finance
Committee
• March 2008 – claimed “if Obama was a white man, he wouldn’t be in this position”
• Comment criticised by many, though some defended her;
Ferraro remained defiant but resigned her campaign role

The Jeremiah Wright controversy
• Obama’s former family pastor. Married him, baptised his children – an
“uncle figure”
• Now retired from ministry
• In March 2008 a variety of incendiary videos appeared on TV and the internet, including “anti-American” and “anti-white” racist statements

Obama’s Philadelphia speech
• Obama had long avoided the issue of race, attempting to be a “colour-blind” candidate
• He initially avoided the Wright controversy – but it became a major threat to his campaign
• Delivered “Landmark” high-risk More Perfect Union speech in Philadelphia
• Condemned Wright’s statements, but explored reasons for such extreme rhetoric in historical context
• Declared he would neither disown Wright nor his racist grandmother
• Speech considered a masterpiece, so far polls appear steady