Civil Liberties and
Civil Rights
Introduction
Game Plan
• This week we will study one Amendment at a
time, starting with the text of the Amendment
and then following the Supreme Court
(SCOTUS) cases that further explain that
Amendment.
• Each of you will be given court cases and legal
terms to research over the weekend. Complete
this by Tuesday – you will be responsible for
teaching your classmates.
How to Brief a Case
• Your brief of a case must include the following:
– Citation: The Name and Date of the Case
• Gitlow v. NY (1925)
– Facts of the Case:
• Gitlow published a socialist manifesto, which caused the State
of NY to charge him with advocating the violent overthrow of
the U.S. Government,
– Question:
• Does the First Amendment Free Speech guarantee include
speech that advocates overthrowing the government?
• Does the First Amendment govern the behavior of State (as
opposed to federal) governments?
– Decisions:
• The government may suppress speech that directly advocates
the overthrow of the government.
• The 14th Amendment Due Process clause means that the First
Amendment does apply to State governments (incorporation).
What’s the Difference Between
Civil Liberties and Civil Rights?
• Civil Liberties are those rights protected in the Bill of
Rights – Free Speech, Freedom from Cruel and
Unusual Punishment, Freedom from Unlawful
Searches. These rights are GUARANTEED.
• Civil Rights are those rights that grew out of the
Fourteenth Amendment – the promise that you will be
treated equally under the law. They usually involve
things that are not guaranteed (you do not have the
right to a specific job), but rather things that you will
not be denied due to discrimination (you will not be
refused a job because you are a woman).
What’s the Difference Between
Civil Liberties and Civil Rights?
• They are interchangeable. While the definitions on
the previous page are correct, almost everyone uses
them interchangeably (and, technically, incorrectly).
• For example, the American Civil Liberties Union
(ACLU) uses the courts to fight to protect BOTH the
liberties guaranteed by the Bill of Rights, and the civil
rights promised by the Fourteenth Amendment. They
use the phrase “civil liberties” to describe everything
they do.
Vocabulary
• Habeas corpus:
– “produce the body”
– A Writ of Habeas Corpus is a court order requiring
government officials to present a prisoner to the court.
– Often requested by death row prisoners as the request that
they be allowed to appeal to the court to delay/overturn their
execution.
• Ex post facto
– The Constitution forbids ex post facto laws.
– Retroactive laws – laws that make an act a crime that was
not a crime when it was committed.
– Laws may be retroactive if they work in favor of the accused
(i.e. shorten a penalty, or make something no longer a
crime).
Vocabulary
• Bill of Attainder
– Legislation, punishes a person or group of people without a
trial.
– Forbidden by the Constitution.
The U.S. Constitution Applies to the
FEDERAL GOVERNMENT
• “Incorporation” – how the Bill of Rights has been
made to apply to actions of the governments of all 50
states.
• The Fourteenth Amendment states “nor shall any
State deprive any person of life, liberty, or property,
without the due process of law”
• When you read cases that concern the Bill of Rights
and State action (i.e. police behavior), you will see the
14th Amendment “Due Process” clause being used to
make the relevant Amendment apply to the State.
• Incorporation has been a slow process – are you
surprised to learn that the Bill of Rights didn’t
originally apply to the States?
FIRST AMENDMENT
The First Amendment
“Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”
– Both Freedom from an official government religion
and Freedom to practice the religion of your choice
(or no religion)
– Freedom of Speech
– Freedom of the Press
– Right to Assemble
– Right of Petition
First Amendment: Terms and Cases (Free
Speech)
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Gitlow v. New York
Schenck v. United States
Brandenburg v. Ohio
Texas v. Johnson
Miller v. California
Libel / Slander
Symbolic Speech
Prior Restraint
Fighting Words
New York Times v. Sullivan
Tinker v. Des Moines
Chilling effect
First Amendment: Terms and Cases
(Freedom of Religion)
• Lemon v. Kurtzman
• Everson v. Board of Education
• Engle v. Vitale
FOURTH AMENDMENT
The Fourth Amendment
• “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.”
Fourth Amendment: Terms and Cases
• Probable cause
• Mapp v. Ohio
• Exclusionary rule
FIFTH AMENDMENT
The Fifth Amendment
• “No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor
shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property
be taken for public use, without just compensation.”
Fifth Amendment: Terms and Cases
• Double Jeopardy
• Eminent Domain
• Miranda v. Arizona
SIXTH AMENDMENT
The Sixth Amendment
• “In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defense.”
The Sixth Amendment: Terms and Cases
• Gideon v. Wainwright
EIGHTH AMENDMENT
The Eighth Amendment
• “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.”
Eighth Amendment: Terms and Cases
• Furman v. Georgia
• Gregg v. Georgia
FOURTEENTH AMENDMENT
The Fourteenth Amendment
• “Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States 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 law; nor deny to any
person within its jurisdiction the equal protection of
the laws.”
• Sections 2-5 address representation in Congress,
eligibility for public office, and payment of war debts.
• All 5 sections were originally designed to address the
causes of the Civil War, and to exclude former
Confederates from the US government.
The Fourteenth Amendment
• The 14th Amendment’s “due process clause” allowed
the Supreme Court to incorporate the Bill of Rights to
State governments.
• The 14th Amendment is the basis of all SCOTUS
decisions protecting Civil Rights.
• All civil rights advocates – African Americans,
Latinos, American Indians, Women, Persons with
Disabilities, Gays – have used the 14th Amendment to
fight for their civil rights.
Fourteenth Amendment: Terms and Cases
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Plessy v. Ferguson
Brown v. Board of Education
Bakke v. California
Strict scrutiny
Suspect classification
de facto and de jure discrimination
Affirmative action
PRIVACY
The Right to Privacy
• The words “Right to Privacy” do not appear in the
U.S. Constitution
• The authors of the Constitution feared that the
presence of specifically defined (“enumerated”) rights
would cause people to believe that no other rights
existed.
• The 9th and 10th Amendments were written to counter
the belief that only enumerated rights exist.
• In 1965, SCOTUS identified “penumbras” – unstated
(“unenumerated”) liberties implied by stated rights.
• Privacy is protected by a penumbra.
The Right to Privacy: Logic
• The 9th Amendment says there are rights not
enumerated in the Bill of Rights.
• The Bill of Rights says:
– The government may not put soldiers in your house
– The government may not enter your house easily
These imply that a right to privacy, a “right to be left alone”
(Justice Brandeis) exists.
• SCOTUS did not discuss the right to privacy
explicitly until 1965.
Privacy: Terms and Cases
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Griswald v. Connecticut
Roe v. Wade
Lawrence v. Texas
Planned Parenthood v. Casey
Keep Your Graphic Organizers!!!
• Many Political Science and History classes in college
will include this information…
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Constitutional Law
Criminal Law
Women’s Studies
US Government
Minority Studies
• You already have a head start on creating a pretty
great study guide!