The Federal Judiciary and Civil
Liberties and Civil Rights
The Federal Court System
• Role(s) of the Court in making policy
• Continuous constitutional convention (judicial
review)
– Interpretation
– Extension of laws
– Designing remedies (busing, quotas, etc…)
Judicial Review
• Power to decide constitutionality
• Main judicial power in checks and balances
• Marbury v. Madision
Two views on application of judicial
review
• “strict constructionists” conservatives
– Limited role of the Court in policy-making
– Don’t like “interpretation” of Constitution
• “activists” “legislativists” liberals
– Courts role is to interpret the Constitution
– Use their own experiences to make policy
Selection of Judges/Justices
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Appointment by President
Confirmation by Senate
“Senatorial Courtesy”
“Litmus Test”
Jurisdiction of Federal Courts
• Dual Court System (State and Federal)
• Federal jurisdiction is in Article 3 and 11th
Amendment
• Supreme Court of the US:
– Original Jurisdiction:
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Diversity Cases (2+ States)
US v. State(s)
Reps of Foreign Gov’t v. US
States v. Citizen of other State
– Appellate Jurisdiction: any case may be appealed from
lower federal Court or State Supreme Court
US Courts of Appeals
• Only appellate jurisdiction
• Hears cases from:
– District Courts
– Regulatory Agencies (OSHA, EPA, etc…)
– Courts Martial
– Etc…
US District Courts
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Only original jurisdiction
Federal crimes
Civil suits under federal law
Diversity of Citizenship cases (50,000+ per year)
Admiralty and Maritime Cases
Bankruptcy Cases
Actions of Administrative Agencies (IRS, Social
Security, etc…)
State cases that can be appealed to
Federal Courts
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Constitutional Questions
Death Penalty
Law Suits
Etc…
Getting your case to the Supreme
Court of the US
• Court rejects 90-95% of applications for Writ
of Certiorari
• Costs of Appeal is high
– In forma Pauperis
– ACLU
– Fee Shifting
– Interest Group assistance (NRA, LULAC, NAACP,
etc…)
Standing
• To have standing; must have real controversy
with real adversaries
• Must demonstrate actual harm/damages
• Being a taxpayer is not enough to being a suit
• Government has “sovereign immunity”
Class Action Suits
• Brought on behalf of all those who have same
issue
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Silicone breast implants
Firestone Tires
Nova
Etc…
• Financially attractive to lawyers (million of
“winners” rather than just one)
• Every member of the “class” must be notified so
they can participate in the suit if they wish
The Supreme Court in Action
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Most cases come of writs of cert
Rule of Four
Briefs submitted and studied
Oral Arguments: 30 minutes per side; 10 minutes for
rebuttal
• Judicial Conference; chief Justice polls members of the
Court; case decided
• Chief Justice assigns one of the Majority to write the
Opinion of the Court
– Majority Opinion (per curium– no author)
– Concurring Opinion
– Dissenting Opinion
Checks on the Judiciary
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Public Opinion (limited)
President: nomination of judges/justices
No power to enforce rulings
Congress
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Confirmation
Impeachment
Changing # on the Court(S)
Revising legislation declared unconstitutional
Changing jurisdiction of a Court (not Supremes)
Proposing Constitutional Amendment
Protecting the Liberties of the
Individual
• Purpose of the Bill of Rights was to protect
the individual by limiting the power of the
federal government
• Original constitution has few protections:
– Habeas Corpus
– No Bill of Attainder or Ex Post Facto Laws
– Privileges and Immunities Clause
– Full Faith and Credit Cause
– Definition of Treason
Bill of Rights Protects:
• Personal Liberties: 1st Amendment
• Personal Security: Amendments 2-4
• Rights of the Accused: Amendment 5-8
• Was not intended to restrict States
• Incorporation to the States (except 2nd $7th
amendments) through 14th Amendment’s Due
Process Clause
Why do civil liberties cause conflict?
• Rights often come into conflict with one
another
• Policy entrepreneurs get involved and
stimulate debate (and controversy)
• Cultural and religious conflicts/diversity
Freedom of Expression
Speech, Press, Assembly, and Petition
• Written, spoken, and symbolic
• Purpose of 1st amendment is to protect
unpopular speech/expression
• Blackstone: no prior restraint, but can arrest for
any “unpleasant” or “seditious” expression
• 1917-1919: Congress outlaws any “expression
advocating treason, insurrection, or forcible
resistance to federal law”.
• 1919 : US v. Schenck: “Clear and Present Danger”
Rule used to balance freedom and national
security. “Cry fire in a crowded theater”
Expression
• 1925: Gitlow v. NY: 14th amendment’s due
process clause makes free speech apply to the
States
• 1957: “Calculated to Incite” violence Test
• 1969: Brandenburg v. Hayes: “Imminent Unlawful
Act” Test
• 1977: Nazi’s plan march in Skokie, IL. State
outlaws. Nazi’s win in Court. Can’t prevent
expression because you don’t like their political
views
Court Standards on Expression
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Preferred Position: speech always most important
Prior Restraint: illegal
Imminent Danger: going to happen NOW!
Neutrality: all laws must treat all groups equally;
can’t discriminate
• Clarity: all laws must be understandable by the
average person
• Least Restrictive Means: gov’t regulation has to
be as limited as possible in its interference with
expression
Not all expressions are legal:
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Libel: false and damaging written expression
Slander: false and damaging verbal expression
Obscenity: Miller v. California; 3 part test!
False Advertising
Some symbolic expressions
Hate speech?
Etc…
Freedom of Religion
• Establishment Clause: “Congress shall make
no law respecting an establishment of
religion”
• 1789: no national religion
• Jefferson: “created a wall of separation
between Church and State”
• Supreme Court has generally ruled in favor of
the “wall”
Supreme Court and Free Exercise
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School Prayer : Unconstitutional!
Engle v. Vitale
Murray v. Curlette
Wallace v. Jaffree
Santa Fe v. Doe
Legal School Prayer Guidelines
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Must be student –initiated
Must be student –led
Must be open to all faiths
Must be non-disruptive of the educational
process
• Cannot be school sponsored
• No adults may participate vocally!
Creationism and Evolution
• Epperson v. Arkansas
• Edwards v. Aguilard
• Students are entitled to have all the
information regarding evolution/creation
Released Time
• Zorach v. Clauson
• Students may be excused from class to attend
required religious instruction or services
• Religious instruction/services may not be held
on campus
• Students may not be punished for religious
requirements
State Aid to Religious Schools
• Lemon v. Kurtzman “Lemon Test” or Child
Benefit Test
• States may provide aid to private schools as
long as the aid neither promotes nor inhibits
the religion and is of benefit to the child
– Free lunch
– School buses
– Textbooks
– Tax credits for tuition, uniforms, etc…
Lemon Test
• Secular Purpose
• Neutral purpose (neither advances nor inhibits
the religion)
• No excessive entanglement
The Court has allowed:
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Nativity Scenes
House/Senate prayers
Military Chaplains
“In God We Trust” on $
God in Pledge
God in Oath of Office
God in Oath in Court
Etc…
Free Exercise Clause
• “Congress shall make no law… prohibiting the
free exercise of religion”
• Meaning: You can believe anything you want!
• No government interference in beliefs
• Government may make reasonable
restrictions on religious action to protect the
health, safety, morals, and welfare of the
community
Free Exercise Clause
• Religion is not an excuse for violating the laws of the US or of the States
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Conscientious Objection for Draft
Refusal to work on Sabbath
Unemployment Compensation
Compulsory Education Laws
Pledge of Allegiance
Snake Handling
Drug Use in Religious Ceremony
Medical Care
Blue Laws
Animal Sacrifice
Nudity
Etc…
Right to Keep and Bear Arms
• Two schools of thought:
– Guarantee of individual right to own/possess
– Guarantee that each State will have an armed
militia for defense
– Supreme Court has generally agreed w/ 2nd
Right to Keep and Bear Arms
• Texas and other States can prohibit, regulate,
and restrict individual rights to ownership and
possession of weapons (guns)
– 2nd amendment applies/restricts only the National
government (has not been incorporated)
– States have the “police powers” from the 5th
Amendment reserved to them to protect public
safety
– The Amendment refers to muskets, not handguns
Texas Handgun Law
• Possession of a handgun on or about your
person in public is illegal
• Ownership of a handgun is restricted
• Permit to Carry a Concealed Weapon
requirements
• Game Wardens and Law Enforcement Officers
are exempt from THGL
4th Amendment
A legal search usually requires:
1. Probable Cause (reasonable suspicion)
2. Warrant (court order)
Requirements for a Warrant
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Probable Cause
Affidavit
Judge’s Signature
List of what is to be searched/seized (specific
in scope)
• Served in valid manner
The Exclusionary Rule
• Prohibits the use of illegally obtained evidence in
criminal court
• Weeks v. US (federal)
• Mapp v. Ohio (States- incorporation case)
• Exceptions:
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Good Faith
Inevitable Discovery
Honest Mistake
Police questioning of juveniles
Over-riding considerations of public safety (terrorism!)
Legal Warrantless Searches
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Hot Pursuit
Plain View
Moveable Crime Scene
Emergency Search
Garbage
Inventory
Sobriety/Insurance Checkpoint
Airport Searches
Border Crossings
Student Searches
Nervousness/run from police
Consent
ETC…
Due Process of Law (5th/14th
Amendments)
• Government may only take one’s life,, liberty,
or property after following the correct rules,
laws, and procedures
• Procedural
• Substantive
• 5th: Federal
• 14th: States (incorporation)
Privacy: 5th and 9th Amendments
• Issues of Importance:
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Birth Control
Abortion
Medical Treatment/Information
Employee/Student Drug Testing
Wiretaps
Trespass
Invasion of Privacy/sale of personal information
Photography without consent (publication)
Etc…
Rights of the Accused
• Grand Jury Indictment for major felonies is
required
• Right to be informed of the charges
• Plead the 5th: don’t have to self-incriminate
– Miranda v. Arizona
– Miranda Rights
– Applies only to verbal testimony and confession
Miranda Rights
Rights of the Accused
• Right to Counsel
– Gideon v. Wainwright
– Escobedo v. Illinois
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Right to Compel Witnesses to Testify
Right to Confront Witnesses
Due Process of Law
Speedy Trial
Public Trial
Impartial Jury of Peers
No Excessive Bail
No Cruel and Unusual Punishments
Right to Appeal
Death Penalty
• Not considered cruel and unusual punishment as long
as State follow guideline
• Can only be given if convicted of Capital Murder
• Two step trial
• Immediate Appeal to States’ highest court required
• Cannot be given death penalty if:
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Were under 18 when crime was committed
Are currently insane
Were insane when the crime was committed
Are mentally retarded or incapacitated