Lesson 6.2: Civil Rights/Civil
Liberties & Selective Incorporation
AP U. S. Government
Civil Rights vs. Civil Liberties
"Civil Rights" vs. "Civil Liberties”
• What’s the difference between
"civil rights" and "civil liberties“?
• “Civil rights" - the basic right to be free from unequal treatment
based on certain protected characteristics (race, gender,
disability, etc.) in settings such as employment and housing.
• "Civil liberties" - basic rights and freedoms that are guaranteed -either explicitly identified in the Bill of Rights and the
Constitution, or interpreted through the years by courts and
lawmakers.
"Civil Rights" vs. "Civil Liberties”
Civil liberties
•
•
•
•
•
•
include:
Freedom of speech
The right to privacy
The right to be free from unreasonable searches of your home
The right to a fair court trial
The right to marry
The right to vote
"Civil Rights" vs. "Civil Liberties”
• One way to consider the difference between "civil rights" and "civil liberties"
is to look at
1. what right is affected
•
2. whose right is affected.
•
For example, as an employee, you do not have the legal right to a promotion,
mainly because getting a promotion is not a guaranteed "civil liberty."
•
But, as a female employee you do have the legal right to be free from
discrimination in being considered for that promotion -- you cannot legally be
denied the promotion based on your gender (or race, or disability, etc.).
•
By choosing not to promote a female worker solely because of the employee's
gender, the employer has committed a civil rights violation and has engaged
in unlawful employment discrimination based on sex or gender.
Civil Rights vs. Civil Liberties
CIVIL LIBERTIES are
protections of
citizens
from unwarranted
government action.
CIVIL RIGHTS
describe
government’s
responsibility to
protect
citizens.
The Bill of Rights’ emphasis on limiting the
powers of the national government makes it
arguably more a “bill of liberties.”
Civil Liberties - Freedom vs. Order
• How to balance the competing interests of the people and the
government
• Civil liberties conflicts usually involve:
• An individual (or group of individuals) seeking to exercise certain freedoms
• And
• The government seeking to keep order and preserve the rights of others
• OR
• Two competing liberties
Civil Rights - Freedom vs. Equality
• Are private businesses free to hire and promote whomever they
want?
• Are universities free to admit whomever they want?
• How do we balance the competing need for freedom with the
need for equality?
The Roots of Civil Liberties
• Federalist vs. Anti-federalist debate
• How strong should the federal government be?
• Is there a need to specifically limit the powers of the federal government?
• Most Framers originally opposed the Bill of Rights on the grounds that it was
superfluous because the Constitution enumerated what the US government
could and could not do and states had their own Bills of Right
• Bill of Rights compromise
• Anti-federalists would only ratify the Constitution if a Bill of Rights was
added
• James Madison primary author of Bill of Rights
US Bill of Rights
• I – Speech, press, assembly,
petition, religion
• II – Bear arms
• III – Quartering of troops
• IV – Search and Seizures
• V – Due process and rights of
the accused
• VI – defendant’s rights
• VII – Right to a jury trial in
civil cases
• VIII – No excessive bail, no
cruel or unusual punishment
• IX – List of specific rights is not
exclusive
• X – Reserved powers clause
AMENDMENT V
*INDICTMENT BY A GRAND JURY…enough
evidence to be charged.
*DOUBLE JEOPARDY…can’t be tried twice for a crime.
*SELF-INCRIMINATION…can’t be forced to testify against
yourself “taking the 5th”.
*DUE PROCESS…government must go through the proper steps.
AMENDMENT VI
*GUARANTEED A FAIR, FAST, & PUBLIC
TRIAL
*RIGHT TO BE PRESENT IN COURT
*RIGHT TO HAVE A LAWYER
AMENDMENT VII
RIGHT TO A TRIAL BY JURY
IN CIVIL CASES + $20*
*Changed by Congress
to be $75,000
AMENDMENT VIII
*PROTECTION AGAINST EXCESSIVE BAIL
$$$$$$$
*PROTECTION AGAINST CRUEL
& UNUSUAL PUNISHMENT
Bill of Rights – Original Interpretation
• The Bill of Rights, when ratified in 1791, applied only to the
powers of the national government and did not apply to the
states.
• The first five words of the First Amendment:
“Congress shall make no law…”
• Barron vs. Baltimore (1833)
• Supreme Court ruled that Bill of Rights applied only to US government
• The Court’s decision in Barron vs. Baltimore remained
unchallenged until after the 14th Amendment was added to
the Constitution in 1868
A Double Standard
• Until the Bill of Rights was incorporated to apply to the states, the
United States had two drastically different systems of criminal
justice
• Federal prosecutors were required to use search warrants, the
exclusionary rule, and trial by jury, but state prosecutors were not
required to do so
• The Supreme Court eventually extended most criminal procedure
rights to the states to avoid giving state law enforcement officials
incentive to violate the U.S. Constitution
Selective Incorporation
Applying the Bill of Rights to
State and Local Government
Selective Incorporation
So how did we come to Selective Incorporation? Did the word “liberty” in
the due process clause mean the entire Bill of Rights was to be
used...Total Incorporation.
Total Incorporation does have some difficulties. Ex: meant imposing on
state court systems the requirement to have a trial by jury in civil suits
where the amount exceeds $20?
Plus, what about the 10th Amendment...powers not delegated to the US by the
Constitution, nor prohibited by the States, are reserved for the States respectively, or to the
people
• This is how we have come to SELECTIVE INCORPORATION –
case by case basis.
Selective Incorporation
• On a case-by-case basis, the Supreme Court began recognizing a
role for the national government to protect citizens from state
governments.
• Selective incorporation defined: the process by which different
protections in the Bill of rights were incorporated into the 14th
Amendment, thus guaranteeing citizens’ protection from state as
well as national governments
14th Amendment - 1868
Section 1. All persons born or naturalized in the U.S. and subject to the jurisdiction thereof,
are citizens of the U.S. and of the State wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due
process of the law; nor deny to any person within its jurisdiction the equal protection on
the laws.
Three Clauses:
1.
Privilege and Immunities Clause
2.
Due Process Clause*
3.
Equal Protection Clause*
*significantly impacted future SC decisions
Incorporation
• When the Supreme Court uses the Fourteenth Amendment’s
Privileges and Immunities Clause or Due Process Clause or Equal
Protection Clause to rule that a state law or policy has violated a
Bill of Rights protection, it is said to have “incorporated” that
protection.
Gitlow v. New York (1925)
• Benjamin Gitlow wrote a pamphlet entitled “The Revolutionary
Age” urging industrial workers to strike and join a revolution to
overthrow organized government.
• Gitlow was arrested and convicted for violating a New York state
law that made it a crime to advocate the overthrow of the
government by force or violence
• Gitlow argued that the New York law violated his right to freedom
of speech and of the press
Gitlow v. New York (1925)
• Does the First Amendment apply to the states?
• Yes, by virtue of the liberty protected by due process
that no state shall deny (14th Amendment)
• The Supreme Court voted to uphold Gitlow’s conviction,
but ruled that “freedom of speech and of the press…are
among the fundamental and personal rights and liberties
protected by the Due Process Clause of the 14th
Amendment”
Selective Incorporation
• The ratification of the 14th Amendment created a formal
framework for extending certain aspects of the Bill of Rights
to apply to the states
• The incorporation doctrine becomes the justification for
using the 14th Amendment to apply the Bill of Rights to states
• Gitlow vs. New York was the first incorporation case
• Selective incorporation - The Supreme Court decides, on a
case-by-case basis, which provisions of the Bill of Rights it
wishes to apply to the states.
Selective Incorporation
Important understandings
• Incorporation did not happen all at once
• It happened one provision and one clause of the Bill of Rights at a
time
• Several of the amendments have NOT been incorporated
Table 5.1
P. 157
The Selective Incorporation of the Bill of Rights
Amendment
Right
Date
Case Incorporated
I
Speech
Press
Assembly
Religion
1925
1931
1937
1940
Gitlow v. New York
Near v. Minnesota
DeJonge v. Oregon
Cantwell v. Connecticut
II
Bear arms
2008
DC v. Heller
III
Quartering of troops
IV
No reasonable search or
seizure
Exclusionary rule
1949
Wolf v. Colorado
1961
Mapp v. Ohio
Just compensation
Self-incrimination
Double jeopardy
Grand jury indictment
1897
1964
1969
Chicago, B&Q RR Co. v. Chicago
Malloy v. Hogan
Benton v. Maryland*
NOT INCORPORATED†
V
NOT INCORPORATED
* Overruled Palko v. Connecticut; †Trend in state criminal cases is away from grand juries
In Conclusion
Selective incorporation has profoundly altered American federalism.
Before the process started, the federal courts had little to say
about the day-to-day operation of state and local gov’ts.
With the incorporation of the freedom of speech and the press came
federal guidelines for states and localities concerning expression
and its type.
The federal gov’t tells states what sort of anti-obscenity and antipornography laws they may pass and enforce, and what sort of
marches, parades and rallies they must allow in public places.
Whether the Chicago suburb of Skokie must allow Nazis to march through its Jewish
neighborhoods- or a city in Florida may prevent the sale of albums by 2 Live Crew are now
questions involving the SC’s interpretation to the First Amendment
In Conclusion
• The incorporation of the 4th, 5th, and 6th Amendments has
changed the way state and local authorities enforce criminal law.
Law officials must pay particular attention to the way they
interrogate suspects.