Reading/Lecture 2 Civil Liberties & Civil Rights • Civil Liberties • Civil Rights Civil Liberties and Rights • Often used interchangeably • Liberties are freedoms the government cannot limit - speech, religion, petition. • Rights are freedoms granted explicitly by the government – reflects the will of the people – may be imbedded in the constitution – citizenship, suffrage, equal treatment in employment Bill of Rights • U.S. Bill of Rights - 1st ten amendments to the constitution – agreed to before ratification to ensure government was explicitly limited. • Texas Bill of Rights - First article in the constitution – stated first to reinforce its importance. • “New Judicial Federalism” - state efforts to expand freedoms above the federal levels. Application of Bill of Rights to All States • • • • • • • • 1897 Chicago R.R. v. Chicago - V 1925 Gitlow v. New York - I Speech 1931 Near v. Minnesota - I Press 1934 Hamilton v. Univ of Cal Regents - I Religion 1939 Hague v. CIO - I Assembly 1949 Wolf v. Colorado - IV Unnecessary search and seizure 1961 Mapp v. Ohio IV Warrantless search and seizure 1962 -1966 III, V, VI Texas Civil Liberties • 34 Sections of Article 1 of Constitution • More affirmative than US Bill of Rights • Preferred fundamental freedom necessary for democracy - speech, assembly, petition, religion • Begins with equal protection • Followed by 1st amendment freedoms • In most cases more restrictive than the Bill of Rights Freedom of Speech and Press • Foundation of democracy is deliberation • These freedoms ensure open deliberation • Texas upheld these freedoms before US Supreme Court forced states to apply these freedoms Limiting Speech • Clear and present danger • Prior restraint - prevention of publication – only when there is a real and immediate inescapable harm – and there is no alternative which would violate freespeech less – These criteria have never been met • Controlling law - a court decision that determines how substantive cases should be decided. – Marsh v. Alabama – NWFC v. Barton Creek Mall – Right to Life Advocates v. Aaron Women’s Clinic Right of Remonstrance • Similar to right of petition and address of the government • Petition can be a one way conversation • Remonstrance requires the governing body to reply to the petition • Remonstrance requires two way communication and therefore more deliberation Freedom of Religion • More specific prohibitions against use of religion tests in employment and discrimination • Employment Division v. Smith - Oregon 1990, Court denies appeal. • Religious Freedom Restoration Act - 1993 • City of Boerne v. Flores - 1997 using RFRA as basis for case. • Court denies appeal claiming RFRA is unconstitutional. • Texas Legislature enacts own version in 1999. Due Course of Law • All procedural rules will be followed in case considering rights of the accused. • “Due process” guaranteed by 14th amend • “Due course” guaranteed by Section 19 of Article 1 of Texas Constitution – grants affirmative right of people without regard to state government – includes disenfranchisement (life, liberty, property, privileges and immunities) – open court provision for access to judicial system guaranteed for redress of grievances and settling disputes Search and Seizure • 4th Amendment in Bill of Rights • Section 9 of Article 1 of Texas Constitution • Texas more restrictive in that warrant must be described “as near as can be” Self Incrimination • Pleading the 5th • Pleading Section 10 - Article 1 • Texas Court of Criminal Appeals has more broadly interpreted violation of Miranda Rights – waiving Miranda rights without a lawyer present is unconstitutional Exclusionary Rule • Excluding evidence collected illegally • U.S. and Texas interpretation identical • In Texas “other person” phrase is included which means evidence can be illegally collected by a private person as well as police. Confrontation • Right to confront witnesses against the accused • Attempts to balance witness concerns and the rights of the accused • Even in sexual abuse cases the video taping testimony of children is not considered constitutional. Civil Rights • Topical Scenario • Civil Rights Topical Scenario • Fictional Account of Sexual Harassment • Supervisor pressures subordinate with sex for promotion • Employee complains to management where it is addressed as just a problem of corporate culture. • Civil suit for sexual harassment – Federal versus State suit – State suit offers better chance of success Civil Rights • Based on 14th Amendment to U.S. Constitution • Rights granted by the government • Citizenship • Voting • Equal protection in education, employment, housing Citizenship • Not everyone qualifies • It is a prerequisite for other rights • Residency requirements one way to determine citizenship • Full citizenship occurs at age 18 • Citizenship and college costs - out of state and foreign student tuition at state schools Voting • Basic freedom in representative democracy • Universal suffrage has come slowly • Texas Constitution prohibits voter registration • 13th, 14th, 15th Amendments • “Jim Crow” laws in southern states – white only primaries – poll tax – literacy tests U.S. Suffrage Enforcement • Court declares white primaries unconstitutional in 1944. • 24th Amendment ends poll tax in national elections (1964) – US v. Texas (1966 - Extended it to state elections) • 26th Amendment lowers voting age to 18 • Voting Rights Act of 1965 - prohibits states from using anything as a prerequisite to voting State Reaction Voting Dilution • Voting Dilution - spreading minority vote to dilute and control representation. - Gerrymandering - Majority runoffs - At-large Elections - Straw candidates - Restrictive registration - State election dates Equal Protection • Similar to equal rights • Granting equal opportunity in education and employment • U.S. Supreme Court levels of scrutiny – strict scrutiny requires a compelling state interest to limit equality – intermediate scrutiny requires state to demonstrate more than a rational basis for limiting equality – rational-basis test requires state to have a rational argument for treating people differently Types of US Court Standards • Strict scrutiny applies to suspect classification of race, ancestry, national origin, right to: vote, criminal appeal, interstate travel, procreation, parentchild relations, marriage, confrontation in court. • Intermediate scrutiny applies to cases dealing with aliens, illegitimate children, and gender issues. • All the rest treated under rational-basis Texas Application of ERA • Equal Rights Amendment - Section 3a of Article 1 • Prohibits gender based discrimination. • Texas Court applies strict scrutiny rule. • Additionally the state must show that no other nondiscriminatory action is possible.