Civil Liberties
Liberties v. Rights
 Civil Rights are government guarantees of political
equality.
 Civil Liberties protect individuals from
governmental interference.
 Civil Rights tend to apply to groups, whereas Civil
Liberties are individual protections.
The Bill of Rights - Early Interpretation
Early Supreme Court
 Seen as weak institution
 Cases are primarily about:

distribution of power among branches of government

relationship between state and federal government
Early Interpretation of the Bill of Rights
Barron v.
Baltimore
(1833)
Early Interpretation of the Bill of Rights
Barron v.
Baltimore
(1833)
Bill of Rights does not
apply to the States
“Congress shall make no law…”
Incorporation of the 14th Amendment
Incorporation
The process through which the Supreme
Court examines individual provisions of the
Bill of Rights and applies them against state
and local officials
Incorporation of the 14th Amendment
After the Civil War, 14th Amendment added to the
Constitution
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
Incorporation of the 14th Amendment
Judges must determine what protections,
if any, are provided by the phrases:
 Privileges or immunities of citizens
 Equal protection of the laws
 Due process of law
Incorporation of the 14th Amendment
 First step towards incorporation:

5th Amendment “Takings” Clause
Incorporation of the 14th Amendment
Lawyers ask Supreme Court to
interpret the Due Process Clause
in such a way as to protect
individual rights against state
and local governments
Supreme Court refuses to
incorporate a personal right until
1925 decision in Gitlow v. New
York (1925)
1st Amendment Rights
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.
Gitlow v. New York (1925)
 "State may punish utterances endangering the
foundations of government and threatening its
overthrow by unlawful means" because such
speech clearly "present[s] a sufficient danger
to the public peace and to the security of the
State.“
 But the case does uphold the right to free speech
 Clear and Present Danger was established in Schenck
v. U.S. (1919)
1st Amendment Rights: Freedom of Speech
Symbolic Speech
When people take an action designed
to communicate an idea
1st Amendment Rights: Freedom of Speech
 Symbolic Speech can be granted 1st Amendment
protection
 Tinker
 Texas
v. Des Moines (1969)
v. Johnson (1989)
1st Amendment Rights: Freedom of Speech
When can
restrictions
be put on First
Amendment
rights?
Reasonable restrictions on
assemblies:
•
•
•
Time
Place
Manner
-
Hate speech
Fighting words
Obscenity
Roth v. United States (1957)
Ban ok if…“average person, applying contemporary community standards”
would find it “without redeeming social importance”
Obscenity
Miller v. California (1973)
•Depicts or describes sexual conduct
in a patently offensive way
•“Lacks literary, artistic, political, or
scientific value”
Obscenity
Potter Stewart’s Standard
"I shall not today attempt
further to define the kinds of
material I understand to be
embraced within that
shorthand description; and
perhaps I could never succeed
in intelligibly doing so. But I
know it when I see it, and the
motion picture involved in this
case is not that."
Obscenity in Music
 2 Live Crew
 American Family Association: “Parental Advisory” not enough
 1988 – store owner in Alabama arrested
 Broward County, FL declares album obscene

Obscenity is confirmed by the U.S. District Court
Broward, huh?
Broward County
 Largely white retirees
 Store owners arrested for selling the album
 3 members arrested after a live performance
U.S. Court of Appeals
 Dr. Henry Louis Gates
 Lyrics have roots in African-American “vernacular, games, and
literary traditions”
 Members are acquitted in their trials
 Appeals Court side with 2 Live Crew
U.S. Court of Appeals
 Dr. Henry Louis Gates
 Lyrics have roots in African-American “vernacular, games, and
literary traditions”
 Members are acquitted in their trials
 Appeals Court side with 2 Live Crew
 2 Live Crew later had a case go the Supreme Court
 Campbell v. Acuff-Rose Music, Inc
 Court sides with 2 Live Crew (fair use / parody)
Media Freedom
Prior Restraint
 a governmental attempt to prevent
certain information or viewpoints
from being published
1st Amendment Rights: Freedom of the Press
Near v. Minnesota (1931)
The Supreme Court rules against the
use of prior restraint of publications
that criticize the government
1st Amendment Rights: Freedom of the Press
 Press interests versus governmental priorities


Reporter’s privilege
Shield Laws
 Reporters may be found in contempt of court if they
refuse to cooperate with criminal investigations

Judith Miller of the New York Times
Pentagon Papers
 Reveal numerous government lies about the Vietnam
War (under Kennedy & Johnson)
 Nixon “protects” the right to secrets
 Invokes Espionage Act of 1917

NYT v. U.S (1971)

“Only a free and unrestrained press can effectively expose
deception in government. And paramount among the
responsibilities of a free press is the duty to prevent any part of the
government from deceiving the people and sending them off to
distant lands to die of foreign fevers and foreign shot and shell.”
Civil Liberties and National Security
 Some examples:
 The USA PATRIOT Act (2001)
 Military Commissions Act (2006)
Patriot act
 Senator Conyers:
"We
don't really read most of the bills.
Do you know what that would entail if
we read every bill that we passed?...[It
would] slow down the legislative
process”
Patriot Act
 Concerns
 Wiretaps
don’t need a warrant
 Voicemail access granted with a warrant,
not a wiretap order
 Law enforcement can “shop” for judges
 Access to library records
 Indefinite detention of accused terrorists
Military Commissions Act (2006)
 Detainees can have a military trial
 Cannot use a civilian attorney
 No habeas corpus*
 No jury – a 2/3 vote from the Commission
 Indefinite detention of “unlawful combatants” and
“those awaiting determination”

Includes “aliens” and US citizens
Area 51
Area 51
 1994: Contractors, widows sue the USAF
 DOD: releasing evidence, ID’ing witnesses would “expose
classified information and threaten national security”
 Rejected by U.S. District Court
Area 51
 1994: Contractors, widows sue the USAF
 DOD: releasing evidence, ID’ing witnesses would “expose
classified information and threaten national security”
 Rejected by U.S. District Court
 Clinton exemption for “The Air Force’s Operational
Location Near Groom Lake, Nevada”
 Court drops the case (no evidence)
Area 51
 1994: Contractors, widows sue the USAF
 DOD: releasing evidence, ID’ing witnesses would “expose
classified information and threaten national security”
 Rejected by U.S. District Court
 Clinton exemption for “The Air Force’s Operational
Location Near Groom Lake, Nevada”
 Court drops the case (no evidence)
 Appealed, “can reveal military operational capabilities or
the nature and scope of classified operations”
 Case dismissed
Consider this…
 Should the U.S. government have the authority to
assassinate, without trial, people that are
considered threats to U.S. national security?
Consider this…
 Should the U.S. government have the authority to
assassinate, without trial, people that are
considered threats to U.S. national security?
 Should the U.S. government have the authority to
assassinate, without trial, U.S. citizens that are
considered threats to U.S. national security?
Consider this…
 Should the U.S. government have the authority to
assassinate, without trial, people that are
considered threats to U.S. national security?
 Should the U.S. government have the authority to
assassinate, without trial, U.S. citizens that are
considered threats to U.S. national security?
 Should the U.S. government have the authority to
assassinate, without trial, U.S. citizens residing
inside of the United States that are considered
threats to U.S. national security?
Religion
1st Amendment Rights: Freedom of Religion
Establishment Clause
“Congress
shall make
no law respecting an
establishment of
religion….”
Free Exercise Clause
“…or
prohibiting the
free exercise thereof.”
2 Views of Establishment Clause
Separationist
Accommodationist
Government must avoid Would permit the
contacts with religion,
government to provide
especially those that lead support for religion and
to government support
associated activities
or endorsement of
religious activities
Freedom of Religion
In the 1960s the Supreme Court adopts the
Separationist Perspective
1)
2)
Engel v. Vitale (1962)
-School Prayer
School District of Abington Township,
Pennsylvania v. Schempp (1963)
-School Bible readings
1st Amendment Rights: Freedom of Religion
How does the Supreme Court decide cases that involve the
Establishment Clause?
Lemon test: a standard developed in the 1971 case Lemon v.
Kurtzman. The court must ask three questions:
1) Does the law or practice have a secular purpose?
2) Does the primary intent or effect of the law either advance
or inhibit religion?
3) Does the law or practice create an excessive entanglement
of government and religion?
Freedom of Religion
Free Exercise Clause: key
cases
 Minersville School
District v. Gobitis (1940)
 West Virginia v.
Barnette (1943)
 Employment Division of
Oregon v. Smith (1990)

-right to free exercise of
religion does not relieve an
individual of the obligation
to comply with a ‘valid and
neutral law of general
applicability’”
2nd Amendment: Right to Bear Arms
“A well-regulated Militia, being necessary
for the security of a free State, the right of
the people to keep and bear Arms shall not
be infringed.”


US v. Miller (1939)
D.C. v. Heller (2008)
U.S. V. Miller
 Supreme Court’s ruling
 Commerce
Clause applied
 Second
Amendment protects only the
ownership of military-type weapons
appropriate for use in an organized militia
A
sawed-off barrel made the NFA
applicable
D.C. V. Heller
 Issue pushed by former AG Ashcroft
 D.C. law banned handguns (unless retired police)
 Rifles & shotguns had to be registered & have a
trigger lock
 Supreme Court struck down the law
Criminal Rights
Exclusionary Rule (4th Amendment)
 Under this rule, evidence that is obtained
improperly by the police cannot be used to
prosecute someone accused of a crime
 In 1970s and 1980s, the Supreme Court became
more likely to make exceptions
Criminal Rights
 5th Amendment
 Self-Incrimination
 Double Jeopardy
 6th Amendment
 Right to an attorney
 Rights at trial
8th Amendment: Cruel and Unusual Punishment
Capital Punishment
Can it be
considered “cruel
and unusual”
punishment?
5th & 14th Amendments
 Cannot be deprived of “life, liberty, or property,
without due process of law”
 Courts’ concerns: inconsistent application, unclear
which crimes qualified
 Hill v. McDonnough (2006) – state standards can be
challenged
 Baze & Bowling v. Rees (2008) – Supreme Court
upholds Kentucky’s executions in a 7-2 vote
Some issues with capital punishment…
 Financial concerns
 Executing innocents
 Type of Execution
 Expertise of Executioner
Medical Ethics
 American Medical Association
 Doctors should preserve life
 A physician, as a member of a profession dedicated to
preserving life when there is hope of doing so, should not be a
participant in a legally authorized execution. Physician
participation in execution is defined generally as actions which
would fall into one or more of the following categories: (1) an
action which would directly cause the death of the condemned;
(2) an action which would assist, supervise, or contribute to
the ability of another individual to directly cause the death of
the condemned; (3) an action which could automatically cause
an execution to be carried out on a condemned prisoner.
Medical Ethics
 Doctors can’t write prescriptions for executions
 Where are the drugs coming from???
 State laws don’t require a doctor to undertake the execution
 State laws usually require a doctor to certify death
 Autopsies reveal “Anesthesia Awareness” could be a
problem
 Florida: Jeb Bush bans executions after a botched
attempt (reversed by Governor Crist)
 Ohio: Executions on hold after executioners failed to
find a prisoner’s vein after two hours
The Right to Privacy
The word “privacy” does not appear
in the Constitution
However, in 1965, Supreme Court determined that the
right to privacy could be found in “penumbras and
emanations” from other amendments
Abortion Rights
Roe v. Wade (1973)
Roe v. Wade
 Justice Blackmun:
 “The
court has recognized that a right of
personal privacy…does exist under the
Constitution…This right of privacy,
whether it be founded in the 14th
Amendment…or in the 9th Amendment, is
broad enough to encompass a woman’s
decision whether or not to terminate her
pregnancy”
Private Sexual Conduct
Key sexual privacy cases
Griswold
v. Connecticut (1965)
Bowers v. Hardwick (1986)
Lawrence v. Texas (2003)
Commonwealth v. Wasson (Ky.) (1992)
A point to remember
 All of these rights were not actually guaranteed by
the Constitution



The Constitution only prohibited the national government
form taking them away
States could, and did, take them
Doctrine of Incorporation has led the courts to guarantee
these rights
Civil Rights
A note on the paper…
 Identify a social/cultural difference that can produce




conflict,
explain the sources of those social/cultural differences,
describe the context shaping how those differences feed
into the political process,
evaluate the influence those differences actually have, with
an eye toward variation (a) across space and (b) across
time, and
reflect on how what you’ve written affects your view of what
it takes to be a responsible and ethical citizen.
A note on the paper…
 Introduces the reader to one form of diversity found in the United States,
stressing the genuine roots of these differences as well as the extent to which
perceived differences may be false or simplified in the form of stereotypes;
 Describes conflicts resulting from this diversity, with a special emphasis on how
those conflicts have varied across time and across space;
 Describes the context shaping how those conflicts are perpetuated and/or
resolved through compromise within American society and in particular within
the American political system;
 Reflects upon how this awareness of diversity, and the potential for cultural
conflict growing from this diversity, can inform your decision of how to
participate effectively and responsibly within the political system.
Some areas
 Gender/Racial disparities in employment
 Integration of the military
 Affirmative Action
 Disparate impact of voter ID laws, language laws
 Race/Gender and sports
 Race and “stand your ground” laws
Developments in Slavery
 1787 – Constitution
Developments in Slavery
 1787 – Constitution
 “determined by adding to the whole number of free persons,
including those bound to service for a term of years, and
excluding Indians not taxed, three fifths of all other persons”
 “The migration or importation of such persons as any of the
states now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the year 1808…”
Developments in Slavery
 1787 – Constitution: no abolition for at least 20 years
 1807 – abolition of the Atlantic slave trade
Developments in Slavery
 1787 – Constitution: no abolition for at least 20 years
 1807 – abolition of the Atlantic slave trade
 1820 – Missouri Compromise
Developments in Slavery
 1787 – Constitution: no abolition for at least 20 years
 1807 – abolition of the Atlantic slave trade
 1820 – Missouri Compromise
 1841 – U.S. v. Amistad
Developments in Slavery
 1787 – Constitution: no abolition for at least 20 years
 1807 – abolition of the Atlantic slave trade
 1820 – Missouri Compromise
 1841 – U.S. v. Amistad
 1857 – Scott v. Sandford
Developments in Slavery
 1787 – Constitution: no abolition for at least 20 years
 1807 – abolition of the Atlantic slave trade
 1820 – Missouri Compromise
 1841 – U.S. v. Amistad
 1857 – Scott v. Sandford
 1860 – Election of Lincoln
Post-Civil War
 13, 14, 15th Amendments
The Civil War & Change?
 Southern States also managed to circumvent the
requirements of the 15th Amendment.
•
•
•
•
Poll Tax
Literacy Test (+ Grandfather Clause)
White Primaries (Smith v. Allwright 1944)
Terror and Intimidation
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
 Civil Rights Cases (1883)
Civil Rights Act of 1875
“all persons within the jurisdiction of the United
States shall be entitled to the full and equal
enjoyment of the accommodations, advantages,
facilities, and privileges of inns, public conveyances
on land or water, theaters, and other places of
public amusement…applicable alike to citizens of
every race and color”
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
 Civil Rights Cases (1883)
 Plessy v. Ferguson (1896)
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
 Civil Rights Cases (1883)
 Plessy v. Ferguson (1896)
 Brown v. Board of Education (1954)
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
 Civil Rights Cases (1883)
 Plessy v. Ferguson (1896)
 Brown v. Board of Education (1954)
 March on Washington, CRA, VRA (1963-1965)
Post-Civil War
 13, 14, 15th Amendments
 Jim Crow laws
 Civil Rights Cases (1883)
 Plessy v. Ferguson (1896)
 Brown v. Board of Education (1954)
 March on Washington, CRA, VRA (1963-1965)
 Affirmative Action
The Ideal of Equality
Equality of Condition
Equality of Opportunity
The government takes
direct action to reduce
economic disparities
between citizens
The government seeks to
eliminate some
discriminatory barriers to
education, employment,
and public
accommodation
Affirmative Action
 University of California v. Bakke (1978)
 16/100 seats reserved for minorities
Affirmative Action
 University of California v. Bakke (1978)
 16/100 seats reserved for minorities
 University of Michigan
 Minorities receive 20 point “bonus” on 100 pt admissions scale
Affirmative Action
 University of California v. Bakke (1978)
 16/100 seats reserved for minorities
 University of Michigan
 Minorities receive 20 point “bonus” on 100 pt admissions scale
 Fisher v. University of Texas
 “equal protection of the law”
Affirmative Action
 University of California v. Bakke (1978)
 16/100 seats reserved for minorities
 University of Michigan
 Minorities receive 20 point “bonus” on 100 pt admissions scale
 Fisher v. University of Texas
 “equal protection of the law”
 Congressional Districting
Affirmative Action
 University of California v. Bakke (1978)
 16/100 seats reserved for minorities
 University of Michigan
 Minorities receive 20 point “bonus” on 100 pt admissions scale
 Fisher v. University of Texas
 “equal protection of the law”
 Congressional Districting
 Shift in Goals
 Equal of conditions >>> diversity of views
Bradwell v. Illinois
The natural and proper timidity and delicacy which
belongs to the female sex evidently unfits it for many of
the occupations of civil life. The constitution of the
family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the
domain and functions of womanhood.
-Justice Joseph P. Bradley
Imagine this…
 Should quantifiable differences in behavior allow
disparate treatment of different individuals?
Imagine this…
 Should quantifiable differences in behavior allow
disparate treatment of different individuals?
 For example…

If statistics indicate men are more likely to cause destructive
car accidents, can the government pass legislation that makes
men go through a more stringent licensing process?
Craig v. Boren (1976)
 Beer at 18!
 Oh, wait..no beer 
 Supreme Court
 Disparate treatment could potentially be justifiable, but the
state must prove important objectives and the law must
address those objectives
 Such a law harms vendors
Milestones
 1963 – Equal Pay Act
 1964 – Civil Rights Act
 1965 – Griswold v. Connecticut
 1973 – Roe v. Wade
 1976 – 1st marital rape law (Nebraska)
 1978 – Pregnancy discrimination
 2009 – Ledbetter Fair Pay Act
“Indian Law”
 Pre-Revolution
 Slavery, Wars, Assimilation
 Revolutionary War
 Indian Removal Act (1830)
 “a trail of tears and death”
William Holland Thomas
 Adopted by Cherokee as a child
 Becomes their attorney
 Principal Chief of the E. Cherokee
 Was able to own land – Qualla
 Civil War
Treatment of Remains
 Surgeon General (1868): “procure Indian crania and other
body parts for the Army Medical Museum”
 Alex Hrdlicka (1900): exhumes, sells remains of 800
Konaig
 Wickliffe, Dickson Mounds: skeletons as a tourist attraction
 Arizona (1990): 1500 remains sold (“What you buy is what
you own”)
Legal Treatment
 Johnson v. M’intosh (1821)
 Only the federal government can purchase native lands
 Not human, but “an inferior race”
 No inherent property rights
Legal Treatment
 Johnson v. M’intosh (1821)
 Only the federal government can purchase native lands
 Not human, but “an inferior race”
 No inherent property rights
 Worcester v. Georgia (1932)
 Cherokee Nation is a “distinct community”
 White law doesn’t apply
 Jackson: “Marshall has made his decision; now let him enforce
it”
Legal Treatment
 Standing Bear v. Crook (1879)
 “That had is not the color of yours, but if I prick it, the blood
will flow, and I shall feel pain. The blood is of the same color
as yours. God made me, and I am a man.”
 Court: “An Indian is a man,” is entitled to certain protections

NOT citizens
Legal Treatment
 Standing Bear v. Crook (1879)
 “That had is not the color of yours, but if I prick it, the blood
will flow, and I shall feel pain. The blood is of the same color
as yours. God made me, and I am a man.”
 Court: “An Indian is a man,” is entitled to certain protections

NOT citizens
 Antiquities Act (1906)
 Remains are archaeological resources, are federal property
Grave Repatriation
 State v. Glass (Ohio, 1971)
 Pre-Columbian graves are not human
Grave Repatriation
 State v. Glass (Ohio, 1971)
 Pre-Columbian graves are not human
 1986: 18,500 remains are in storage at the
Smithsonian
Grave Repatriation
 State v. Glass (Ohio, 1971)
 Pre-Columbian graves are not human
 1986: 18,500 remains are in storage at the
Smithsonian
 Slack Farm (KY): between 800-1200 exhumed
 Unmarked graves were not protected
Grave Repatriation
 State v. Glass (Ohio, 1971)
 Pre-Columbian graves are not human
 1986: 18,500 remains are in storage at the
Smithsonian
 Slack Farm (KY): between 800-1200 exhumed
 Unmarked graves were not protected
 Croteau site (AZ): bulldozers on site until midnight
Tribal Arguments
 States do not protect unmarked graves
 Grave desecration infringes on religious freedom
 The U.S. government has no authority (through
treaties) to desecrate graves
NAGPRA
 “strike a balance between the interest in scientific
examination of skeletal remains and the recognition
that Native Americans…have a religious and spiritual
reverence for the remains of their ancestors”
NAGPRA
 “strike a balance between the interest in scientific
examination of skeletal remains and the recognition
that Native Americans…have a religious and spiritual
reverence for the remains of their ancestors”
 Over 30,000 remains have been repatriated
 670,000 funerary objects
NAGPRA
 “strike a balance between the interest in scientific
examination of skeletal remains and the recognition
that Native Americans…have a religious and spiritual
reverence for the remains of their ancestors”
 Over 30,000 remains have been repatriated
 670,000 funerary objects
 Kennewick Man
Current Issues
 % Adults out of the labor force
 Tohono
59%
 Navajo
56%
 Cheyenne
43%
 San Carlos
54%

National Average: 35%
Current Issues
 % Extreme Poverty ($11,000 for family of 4)
 Tohono
21%
 Navajo
15%
 Cheyenne
15%
 San Carlos
25%

National Average: 4%
Current Issues
 5x more likely to die from alcohol-related disease
 3x more fetal alcohol syndrome
 2x more likely to commit suicide
 32% adult men smoke (21% nationally)