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CHAPTER 3
Civil Liberties and Civil Rights
Introduction
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The framers of the Constitution wanted not only a strong and
effective government but also one that would guard the
rights of a free people.
Civil liberty: a legally protected freedom to act or not to
act, and/or to be free from unwarranted governmental
intrusion
Civil rights: participatory rights, which are citizens’ legal
rights to participate in society and politics on an equal
footing with others, and the assurance that people are not to
be penalized on criteria that society deem irrelevant to
policy making
Civil rights include the rights protected by the three Civil
War amendments, especially the equal protection clause of
the Fourteenth Amendment, along with subsequent laws and
court cases.
The Bill of Rights:
Securing the Blessings of Liberty
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
Applying the Bill of Right to the States
Individual liberties are protected in the Bill of Rights.
 At first the Bill of Rights did not apply to the states.
 Through a process of incorporation, the Supreme Court used
the Fourteenth Amendment as a vehicle for making the Bill
of Rights applicable to the states.
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The Fragility of Civil Liberties
Civil liberties have meant more in some years than in others.
 Americans do not all agree on the rights that the Constitution
should protect.
 Maintenance of civil liberties rests on rules and institutions—
as well as on the attitudes and values of the people.
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Content of the Bill of Rights
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Consisting of barely 450 words, the Bill of Rights (Amendments I through X) was
intended to remedy a defect that critics found in the Constitution of 1787. In
September 1789, Congress proposed twelve amendments for approval by the
states. As the eleventh state (three-fourths of fourteen), Virginia’s ratification in
December 1791 made the Bill of Rights officially part of the Constitution. The
remaining three states—Connecticut, Georgia, and Massachusetts—did not
ratify until the 150th anniversary of the Bill of Rights in 1941. One amendment
was never ratified. It dealt with the apportionment of the house of
representatives and is now obsolete. The other amendment was not ratified until
1992—more than two hundred years after it was proposed! The Twentyseventh Amendment—called the “lost amendment”—delays any increase in
congressional salaries until a congressional election has intervened.
Content of the Bill of Rights
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Freedoms of Speech, of the Press, and
of Assembly
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
Introduction
 Freedoms
of speech, press, and assembly are found in
the First Amendment.
 These liberties all involve forms of expression.

The Value of Free Expression
 It
is necessary to the political process.
 It allows the dominant opinions of the day to be
challenged.
 It aids self-development.
 However, free expression may not always produce the
wisest policies and can threaten social and political
stability.
The Tests of Freedom
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Examples of free speech suppression included the Sedition
Act of 1798 and instances during the Civil War, World War
I, and the Red Scare that followed WWI.
 The Supreme Court’s “clear and present danger” test
prohibited speech only when it would result in imminent
harmful consequences (Holmes/Brandeis)
 The “bad tendency” test, used for a short time, would
prohibit speech even if it did not result in immediate harm.
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Gags
The Court is unlikely to approve a prior restraint—the
censorship of something before it is said or published.
 The Court will rarely approve a pretrial gag on newspaper
and television reports about a crime, even if the gag would
protect the right to a fair trial.
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Obscenity and Libel
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The Court regards obscenity as unprotected speech because
of the public view that it is deleterious.
The Court has applied the “contemporary community
standards” test (Miller v. California) to define obscenity.
Libel, which involves character defamation, is not generally
protected by the First Amendment.
In New York Times v. Sullivan, the Court stated that
premeditated malice must be proved before libel exists.
Some argue that the threat of libel makes journalists wary
and keeps them form doing a thorough job, while others
believe it keeps journalists honest and acts as a check on
their power.
Freedom of Assembly
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Symbolic speech, such as a sit-in, has been
held as unconstitutional when the mode of
expression (not the idea) is considered harmful.
 The Court has upheld the right of individuals to
deface the flag as a symbol of protest and
barred Congress from criminalizing flag
burning.
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Religious Freedom
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
Religion and the Constitution
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Financial aid to sectarian schools has posed a problem.
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The court has allowed some public aid to sectarian schools—if they
pass certain requirements under the Lemon Test.
Prayer in public schools has also been contested.
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The United States is very diverse religiously.
The free exercise clause preserves a sphere of religious practice
free from governmental interference.
The establishment clause keeps the government from becoming a tool
that one religious group can use against others.
Engel v. Vitale outlawed mandatory prayer in public schools.
The Court has been firm in its opposition to state sponsored
religious activities even though this stance creates controversy.
Religious Observances in
Official Settings
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Outside of schools, the Court has been more
willing to allow religious practices in official
settings.
 The Court has placed some limits on official
observances of religious holidays, thus not
permitting any implication of endorsement of a
particular religion.

Free Exercise of Religion
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Problems occur when application of a law is
counter to a religious tenet (e.g. the Amish and
their opposition to compulsory education).
 When actions based on religious belief run
afoul of criminal law, the latter prevails (e.g.
the American Indian use of peyote leading to
job loss and denial of unemployment
compensation)
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Fundamentals of American Criminal
Justice
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
A Government of Laws
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Presumption of Innocence
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The American criminal justice system requires that legal guilt be
proven and that proper criminal procedure be followed.
Conflict often occurs when attempting to balance the value of
individual fairness and crime control.
Presumption of innocence lays the burden of proving guilt on the
government.
The prosecution must also demonstrate mens rea, or criminal intent,
allowing insanity as a defense.
Notice of Charges
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A suspect is entitled to know precisely what charges the state intends
to level or prove, so he or she can present a defense.
Ex post facto laws and bills of attainder are forbidden by the
Constitution.
Limits on Searches and Arrests
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In many searches and in some arrests, the
Fourth Amendment requires a judge-issued
warrant based on probable cause.
 The exclusionary rule disallows evidence
gained as a result of violating the suspect’s
rights.
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Protection Against
Self-Incrimination
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The Fifth Amendment prohibits the use of
interrogations to coerce confessions and protects
suspects from having to testify at their own trials.
Miranda v. Arizona ruled to exclude all confessions
in which the police failed to inform the suspect of
his/her Miranda rights.
Many suspects decide to accept a plea bargain,
during which they confess in order to obtain a
lighter sentence.
Assistance of Counsel
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Although the Sixth Amendment guarantees the
right to legal counsel, until the 1970s defendants
who could not afford a lawyer often went
unrepresented.
Today, the court provides free counsel when a
defendant cannot afford to hire an attorney.
Public defenders and less expensive lawyers often
have heavy caseloads, resulting in a large number
of plea bargains.
Limits on Punishment
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The Eighth Amendment prohibits “cruel and
unusual punishment.”
 Although the Court does not consider the death
penalty unconstitutional, states vary widely in
how they use it.
 Many argue that the death penalty is racially
discriminatory and that the process is flawed.
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Executions by
State, 19762010
Note: Data are
current through
June 3, 2010
Executions by State, 1976-2010
(continued)
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A Right to Privacy
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
Introduction
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The Abortion Cases
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The Ninth Amendment provides the basis for civil liberties not specifically
mentioned in the Constitution, such as the right to privacy.
Roe v. Wade recognized a woman’s right to abortion in the first and
second trimesters, allowing states to ban abortions only in the third
trimester.
Since Roe, attempts to limit abortion failed until Webster v. Reproductive
Health Services gave states greater power to restrict abortion without
overturning Roe.
Controversy continues regarding the government’s right to rule
on people’s choices in regards to sexual relations.
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When it comes to housing and public accommodation practices, as well
as the right to adopt or have custody of children, discrimination based
on sexual orientation is still legal in some areas.
Equality: A Concept in Dispute
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Policies promoting equality of opportunity have
removed barriers of discrimination that existed
in the past.
 Policies promoting equality of condition have
reduced or eliminated handicaps caused by
lingering effects of past discrimination.
 Policies promoting equality of result, such as
affirmative action programs, have tried to
guarantee equal footing.
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Racial Discrimination
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
The Legacy: Slavery, Civil War, and Reconstruction
The Civil War ended slavery (with the Thirteenth
Amendment) and ushered in several civil rights acts during
the Reconstruction.
 Plessy v. Ferguson legitimized segregation through the
separate-but-equal doctrine.
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Formalizing Third-Class Citizenship
Every aspect of life in the South (and many aspects of life in
the North) became racially segregated by law.
 Southern politicians systematically excluded African
Americans from the political process.
 African Americans were shortchanged in the delivery of
public services, especially education.
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Chronology of
Major Civil Rights
Decisions, Laws,
Amendments
The drive for
political equality for
all Americans has
been a long process
and remains
incomplete.
Congressional
statutes and Supreme
Court decisions since
the Civil War have
been important in
achieving equality.
The Counter Attack
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The NAACP and its legal defense fund pressed
for desegregation through the courts.
 Brown v. Board of Education of Topeka
overturned Plessy and the separate but equal
doctrine.
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Putting Brown to Work: The Law and
Politics of Integration
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Several factors hampered implementation of Brown.
 Some
federal judges in the South opposed integration.
 Local school boards opposed Brown.
 Many feared a hostile reaction from whites.
 The Court lacked initial support from Congress, the
White House, and much of the legal community.
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The Civil Rights Act of 1964 and the Elementary
and Secondary Education Act of 1965 furthered
integration.
The Continuing Effects of Brown
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Until the 1970s, the Court focused on eliminating de jure
segregation (segregation by law).
After 1971, the Court focused on de facto (unofficial)
segregation.
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During this time the racial composition of schools reflected
decades of residential de facto segregation. Local
officials now had the affirmative duty of redrawing
attendance zones and busing pupils from one part of
town to another to compensate for economic inequities
and private discrimination during the integration process.
To this day social segregation, especially in terms of
residence, remains a factor in many areas of the nation.
Affirmative Action
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No firm consensus exists on the merits of
affirmative action.
 Regents of the University of California v. Bakke
outlawed racial quotas but permitted the use
of race as one factor in admissions.
 The legal limits to affirmative action remain a
subject of debate.
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Voting Rights
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The Voting Rights Act
The Voting Rights Act of 1965 is the most important voting
legislation ever enacted by Congress.
 Clearance in advance by the attorney general, or the U.S.
District Court for D.C., is required prior to any change in a
locale’s electoral system.
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 This
protects African American voting power from being
weakened.
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The 1982 Amendment established that an existing
electoral arrangement that has a racially discriminatory
effect also violates the law.
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African American voter registration has increased
dramatically since 1965.
Sex Discrimination
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
The Legacy
In the nineteenth century, a wife had no legal existence
apart form her husband.
 The suffrage movement resulted in the Nineteenth
Amendment giving women the right to vote in 1920.
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Gender to the Forefront
Sex discrimination became an issue in the 1960s and
1970s as more women increased their education and
career opportunities.
 Several laws were passed outlawing sexual
discrimination.
 Comparable worth in wage scales would mandate equal
pay for jobs of equal value and require congressional or
state action.
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Other Americans and Civil Rights
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American Indians
Although few in number, American Indians suffer high rates
of sickness, poverty, illiteracy, and unemployment.
 American Indians have been granted more rights and
greater control over their own affairs, thus reflecting a
heightened ethnic pride and political awareness.
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Latinos
Latinos are the nation’s fastest-growing minority.
 Where necessary, ballots must be printed in Spanish and
bilingual education must be provided.
 Latinos have become an important political force.
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Other Americans and Civil Rights
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Immigrants
Legal immigration has been limited since 1921.
 Illegal aliens are a target for discrimination and violence.
 The Immigration Reform and Control Act gave legal
residence to many illegal aliens and required employers
to verify legal status, but it has resulted, also, in
discrimination against Latinos and Asians.
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Disabled Americans
Disabled Americans are the nation’s largest minority
group (with a population of over 43 million).
 The Americans with Disabilities Act (1990) bans
discrimination against the disabled in employment
situations and places of public accommodation.
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Rights and Liberties in the
Constitutional Framework
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Civil rights and liberties are part of the
framework of American constitutional
government.
 Much of what government and people have
done in recent decades has been driven by an
intolerance of inequality.
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