Civil Rights and
Liberties
The Bill of Rights
 Barron v. Baltimore (1833). The Bill of Rights protects
citizens from actions by the national government, not
from state action.
 The Fourteenth Amendment (1868): No state shall
deny any person equal protection under the law nor
deny any person due process of law.
 How does the Fourteenth Amendment change the
relationship between the states and the Bill of Rights?
Selective Incorporation
 Gitlow v. New York (1925) Citizens are protected from
state infringement of fundamental rights in the Bill of
Rights.
 Selective incorporation means citizens are protected
from state actions that infringe on certain rights.
 Rights in the Bill of Rights are incorporated over time,
on a case-by-case
Civil Rights and Liberties
 Civil liberties protect individuals from government
action.
 Civil liberties are substantive due process rights.
 Civil rights are protections granted by the government
to prevent discrimination based on membership in a
group (ethnic minorities, women, religious affiliation,
age over 40, the disabled)
 Civil rights are equal protection rights.
First Amendment
 Freedom of speech, press, assembly, religion, and
petition
 This is a civil liberty.
 No state shall pass any law abridging the freedom of
speech.
Freedom of Speech
 A fundamental right, but states may restrict the time, place,
and manner of speech (parades, protests, blasting music at
midnight)
 Schenck v. United States (1919) flyers that urged resistance
to the draft presented a clear and present danger to the war
effort and were not protected.
 Tinker v. Des Moines School District (1969) and Texas v.
Johnson (1989) hold that symbolic speech (arm bands,
burning a flag) is protected speech.
 In Morse v. Frederick (2007), the Court ruled that a sign held
by students saying, “Bong Hits for Jesus” is not protected
speech in connection with a school activity.
Freedom of Religion
 The Establishment Clause prohibits an official religion
and is based on separation of church and state.
 In Engle v. Vitale (1963), the Court ruled that schoolsponsored prayer violates the Establishment Clause.
 In Abington School District v Schempp (1963) the Court
ruled that school-sponsored reading of the Bible
violates the Establishment Clause.
The Lemon Test
 In Lemon v. Kurtzman (1971), the Court established a
standard for state funding of religious schools
 Is the funding for a secular purpose?
 Will it advance or inhibit religious?
 Will it create excessive entanglement between church
and state?
Free Exercise Clause
 In Wisconsin v. Yoder (1970), the Court ruled that
requiring Amish children to attend school past the
eighth grade violated their rights under the free
exercise clause.
Free Response Question
 Select one of the following cases and identify the First
Amendment clause upon which the Court based its
decision
 Engle v. Vitale (school prayer)
 Lemon v. Kurtzman (funding for religious schools)
 Reynolds v. US (polygamy)
 Oregon v. Smith (drug use in religious ceremonies)
Free Response Question
 Many of these decisions have caused controversy in
the United States. Describe two ways in which other
political institutions might limit the impact of Supreme
Court decisions.
Defendants’ Rights
 These stem from the fourth (unreasonable search and
seizure), fifth (due process), sixth (fair trial), and eighth
(excessive bail and cruel and unusual punishment)
amendments.
 These rights stem from the Due Process Clause.
 Substantive due process protects government from
infringing on citizens protected rights (civil liberties)
 Procedural due process requires that the government go
through fair steps before taking away rights and liberties (fair
trial, right to an attorney, habeas corpus)
Procedural Due Process
 Miranda v. Arizona (1966) Defendants must be read
their rights, or their confessions are inadmissible in
court. This is based on the 5th Amendment.
 Mapp v. Ohio (1961) Evidence seized without a valid
warrant may not be used in court. This is the
exclusionary rule, based on the 4th Amendment.
 Gideon v. Wainright (1963) Defendants in felony cases
who cannot afford an attorney must be provided one by
the state. This is based on the 6th Amendment.
Free Response Question
 Initially, the United States Constitution did little to
protect citizens from actions of the sates. In the 20th
century, the Supreme Court interpreted the Constitution
to protect the rights of citizens from states government
in a process referred to as incorporation
 Define selective incorporation.
Free Response Question
 For two of the following, explain how each has been
incorporated. Each of your explanations must be based
on a specific and relevant Supreme Court decision.
 Rights of criminal defendants
 First Amendment
 Privacy rights.
Incorporation of the Second
Amendment
 In McDonald v. Chicago (2010) the Court held that the
Second Amendment applies to the states, and that gun
ownership by individuals is a protected constitutional
right.
 The Court left room for reasonable regulation of guns.
The Right of Privacy
 The word “privacy” is not used in the Constitution.
 The rights stems from the 3rd, 4th, 5th and 9th
amendments.
 The Fourth Amendment protects persons and their
property from “unreasonable search and seizure”
Privacy Cases
 In Griswold v. Connecticut (1965) the Court overturned
a statute outlawing distribution and information about
birth control and formally established the right of
privacy, stating that the Constitution created a
“penumbra of privacy.”
 In Roe v. Wade (1973) the Court ruled that states could
not ban or unduly restrict abortions in the first or
second trimesters.
 In Lawrence v. Texas (2003), the Court ruled that states
could not criminalize sexual behavior among
consenting adults, overturning a sodomy statute.
Civil Rights
 The Thirteenth Amendment (1865) bans slavery.
 The Fourteenth Amendment (1868) grants citizenship
to those born in the US and provides for equal
protection under the law.
 The Fifteenth Amendment (1870) enfranchised African
American men.
 States used several methods to prevent Blacks from
voting (literacy tests, Grandfather clauses).
Standards for Discrimination
 There are different standards for defending against
discriminatory practices, depending on the group facing
the unequal treatment.
 Strict scrutiny is used in race cases (this is a very difficult
standard to overcome)
 Mid-level scrutiny is used in gender cases.
 The rational basis test is used in other cases (age,
disability).
Race Discrimination
 Dred Scott v. Sanford (1857). Blacks are not citizens.
They may not sue for their freedom.
 The 14th Amendment nullifies the Dred Scott case.
 Plessy v. Ferguson (1896). State mandated racial
segregation on train cars does not violate the 14th
amendment.
 Brown v. Topeka Board of Education (1954) State
mandated school segregation violate the 14th
amendment. “Separation is inherently unequal.”
Race Discrimination
 Baker v. Carr (1962) District voting lines must be drawn
equally and must not disadvantage a racial group. “One
man, one vote.”
 Heart of Atlanta Motel v. United States (1964) upholds the
Civil Rights Act of 1964 under the Commerce Clause.
 Bakke v. University of California (1978) holds that a point
system which disadvantages whites in college admissions
violates the 14th amendment.
 Gratz v. Bollinger (2003) overturns another point system.
Affirmative actions programs must be narrowly tailored to
meet a substantial government interest.
Civil Rights Legislation
 The Civil Rights Act of 1964 outlaws discrimination in
voting, employment, education, and public
accommodations.
 The Voting Rights Act of 1965 authorized federal
marshals to protect registration and voting by African
Americans. Voter registration increased dramatically.
Discrimination Against
Women
 In Reed v. Reed (1971), the Court ruled that states may
not arbitrarily prefer men over women.
 Title IX requires equal educational treatment for women
and girls, including in sports programs.
 An Equal Rights Amendment passed Congress in 1974
but was not ratified by the states.
Review Questions
 What is the difference between the Establishment
Clause and the Free Exercise Clause?
 What is selective incorporation?
 What are the three standards for the court to review
discrimination?
 What is the difference between substantive and
procedural due process?