Lecture 2 Liberties and Rights

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
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
– stated first to reinforce its importance.
• “New Judicial Federalism” - state efforts
to expand freedoms above the federal
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
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,
• 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
– 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
– 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
Freedom of Religion
• More specific prohibitions against use of
religion tests in employment and
• 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
• Texas Legislature enacts own version in
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
• 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.
• Right to confront witnesses against the
• 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.
• Rights granted by the government
• Citizenship
• Voting
• Equal protection in education,
employment, housing
• 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
• Basic freedom in representative
• Universal suffrage has come slowly
• Texas Constitution prohibits voter
• 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
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