Chapter 3 Civil Liberties
& Civil Rights
• The Bill of Rights: A Charter of Liberties
• Nationalizing the Bill of Rights
• Civil Liberties
• Civil Rights
The Bill of Rights:
A Charter of Liberties
• Article I of the Constitution includes
—Writ of Habeas Corpus
—Bill of Attainder
—Ex Post facto Laws
• How does the Bill of Rights provide for
individual liberties?
• What are the differences between civil
liberties and civil rights?
Nationalizing the Bill of Rights
(The Incorporation Issue)
• The U.S. Supreme Court began applying
the Bill of Rights to state action by
utilizing the Fourteenth Amendment.
• The Court selectively applies the
liberties on a case by case basis.
Incorporating the Bill of Rights into the 14th Amendment
4-2
The First Amendment:
Freedom of Religion
• The establishment clause provides that
Congress shall make no law respecting an
establishment of religion. Issues include
— school prayer, nativity scenes, Pledge of Allegiance, bible class,
evolution, The 10 Commandments, private school vouchers.
― Lemon v. Kurzman 1971 – Lemon Test. (secular, religiously
neutral, avoid government religious entanglement.)
• The free exercise clause protects the right to
believe and practice whatever religion one
chooses. Issues include
— polygamy, religious holidays,
— peyote and work.
The First Amendment:
Freedom of Speech
• “Congress shall make no law . . . Abridging the
freedom of speech, or of the press. . . .”
• Not an Absolute Freedom
• Strict scrutiny places the burden on the
government to prove that a restriction on
speech or press is constitutional.
— Speech that presents a clear and present danger is not
protected by the First Amendment. (Sedition and
“fighting words”)
— Libel and slander is not protected.
— Obscenity is not protected.
— Symbolic speech (nonverbal, e.g. flag burning) is
protected speech.
Freedom of the Press
• Clear and Present Danger Test
– a threat to public order
• Preferred-Position Doctrine
– government must prove limiting is absolutely
necessary
• Prior Restraint
– censorship and national security
Freedom of Assembly
• Parades, marches, protests,
demonstrations.
• Court allows requiring permits.
• Assembling versus loitering.
• KKK, Nazis, Crips and Bloods.
The 2nd Amendment:
The Right to Bear Arms
• “A well regulated Militia, being
necessary to the security of a free State,
the right of the people to keep an bear
Arms, shall not be infringed.”
The 3rd Amendment:
Quartering Troops
• During peacetime with owners consent
• During war only by previously
established laws.
Due Process of Law
• 4th Amendment - investigation and
evidence collection
• 5th , 6th and 7th Amendments – trial phase
• 8th Amendment – punishment phase
The 4th Amendment:
Rights of the Criminally Accused
• “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 . . . .”
• Failure to comply with the Fourth
Amendment restricts the use of evidence
pursuant to the exclusionary rule (Mapp v.
Ohio)
The 5th Amendment:
Rights of the Criminally Accused
• Individuals have the right to a grand jury
to determine the merit of criminal
charges.
• A person cannot be tried for the same
crime twice (double jeopardy).
• Individuals have the right to remain
silent and cannot be compelled to testify
against themselves in a criminal case.
• Property cannot be taken by the
government without just compensation.
The 6th Amendment:
The Right to Counsel
• “In all criminal prosecutions, the
accused shall enjoy:
– the right to a speedy and public trial
– confronted with witnesses
– the assistance of counsel.”
• Gideon v. Wainwright establishes the
right to counsel in all felony cases.
The 7th Amendment
• Lawsuits in amount exceeding $20, the
right to trial by jury shall be preserved.
• Evidence heard by jury shall only be
reconsidered using appropriate common
law appeals process.
The 8th Amendment:
Cruel and Unusual Punishment
• The Eighth Amendment prohibits excessive
bail, excessive fines, and cruel and unusual
punishment.
• The death penalty was declared
unconstitutional in 1972, but was reinstated
in 1976, after procedural changes were
implemented.
The
th
9 Amendment
• The enumeration in the Constitution of
certain rights shall not be construed to
deny or disparage others retained by the
people.
The
th
10 Amendment
• The powers not delegated to the United
States by the Constitution, nor prohibited
by it to the States, are reserved to the
States respectively, or to the people.
The Right to Privacy
• What is the right to privacy?
• How has it been derived from the Bill of
Rights?
• What form does the right to privacy take
today?
The Right to Privacy
• Griswold v. Connecticut (1965)
created a “zone of privacy” when it
was ruled that the state of
Connecticut could not prohibit the
use of contraceptives.
—The U.S. Supreme Court concluded
that a right to privacy was created
through the First, Third, Fourth, Fifth
and Ninth Amendments.
The Right to Privacy: Abortion
• In Roe v. Wade (1973), the right to privacy was
extended when the U.S. Supreme Court
declared restrictive abortion statutes
unconstitutional.
• In Webster v. Reproductive Health Services
(1989), the U.S. Supreme Court upheld
restrictions on the use of public facilities for
abortions.
• In Planned Parenthood v. Casey (1992), the
court narrowed the scope of Roe v. Wade.
• Gonzalez v. Carhart (2007) – partial birth
abortion ban.
The Right to Privacy:
Right to Die
• Assisted suicide.
– Most states say no and court agrees.
• In 1997 Oregon became first state to
allow assisted suicide.
Civil Rights
• Legal basis for civil rights
• Enforcing the equal protection clause of the
14th Amendment
• The 14th Amendment to the Constitution is
referred to as the “equal protection clause”.
• “no State shall make or enforce any law
which shall . . . deny to any person
within its jurisdiction the equal
protection of the laws.”
The Equal Protection Clause:
Supreme Court Interpretations
• The Supreme Court refused to apply the
equal protection clause of the 14th
Amendment to private businesses in the
civil rights cases (1873).
• “Jim Crow” system of segregation in the
south.
Civil Rights:
Plessy v. Ferguson
• In Plessy v. Ferguson (1896), the Supreme
Court upheld segregation, as long as the
facilities were equal.
• The doctrine of “separate but equal” was
born. Legal or “de jure” segregation was
the acceptable to the courts.
• Sweatt v. Painter – 1950
– Texas State University for Negroes ( Created 1947)
– Texas Southern University
Civil Rights:
Brown v. Board of Education
• In Brown v. Board of Education (1954),
the Supreme Court struck down the
“separate but equal” doctrine and
ordered the desegregation of the nation’s
public schools.
• NAACP – 1909
– Thurgood Marshall and Rosa Parks
Supreme Court Interpretations
• Fundamental rights - constitutionally
explicit
• Suspect classification - race or nation
origin
• Strict scrutiny - compelling state interest
• Intermediate scrutiny - substantially
related to achieving a state goal.
• Rational basis test (ordinary scrutiny) - is
it a reasonable way to achieve state goals.
Civil Rights after Brown v.
Board of Education
• The Supreme Court used “strict
scrutiny” to put the burden on the state
government to establish the
constitutionality of its actions.
• Segregation created by law (de jure) was
struck down.
• De facto segregation still occurs through
housing patterns in existence today.
Civil Rights Legislation:
The Civil Rights Acts
• The Civil Rights Act of 1875 was
declared unconstitutional.
• The Civil Rights Acts of the 1950s and
1960s were upheld on a variety of
grounds, including the power to regulate
interstate commerce.
Desegregation
Phase One
•
•
•
•
•
De jure versus de facto segregation
“Massive resistance” across south
Court decisions without effect
Little Rock High School - 1957
President Eisenhower
– Declares martial law
– End funding to states resisting
– Civil Rights Commission - 1957
Civil Rights Act – 1964
Phase 2
• Public Accommodations
• Interstate Commerce
Commission
• Busing (education phase II)
• Title IV
– Justice Department Suits
– Federal Grants
• Title VII
– Employment
– Contracts controls
•
•
•
•
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Equal Pay Act 1963
Voting Rights 1965
Immigration Act of 1965
War on Poverty 1966
Fair Housing Act 1968
• Equal Pay Act 1963
• Voting Rights 1965
• Immigration Act of 1965
• War on Poverty 1966
• Fair Housing Act 1968
The Universalization
of Civil Rights
• Women and Gender Discrimination
– ERA Defeated in 1982
• Latinos and Asian Americans
– LULAC, MALDEF, Asian Law Caucus
• Native Americans
– AIM
• Disabled Americans
– Americans with Disabilities Act 1990
• Gays and Lesbians
– Romer v. Evans (1996)
– Lawrence v. Texas (2003)
Affirmative Action
• Affirmative action encompasses
government policies or programs that seek
to redress past injuries against specified
groups by providing access to education
and employment opportunities.
• It is difficult to determine the best way to
provide opportunity.
— Quotas
— Legal action.
The Supreme Court and the
Burden of Proof
• In Bakke v. UC at Davis (1978), the
United States Supreme Court recognized
the importance of affirmative action
programs, but rejected the procedures
used by the University to ensure minority
admissions.
• Specifically, the use of quotas was found
to violate the equal protection rights of
Mr. Bakke.
The Supreme Court and the
Burden of Proof
• Federal courts have weakened the impact of
affirmative action over the last ten years.
• The Supreme Court in the Adarand Constructors
case (1995) rejected race-based preferences in
government contracts.
• The Fifth Circuit rejected the admissions criteria
for admission to U.T. Law School in the Hopwood
case (1996).
• Gratz v. Bollinger (June 2003)
• Grutter v. Bollinger (June 2003)
Affirmative Action and American
Political Values
• Affirmative action efforts have
contributed to the polarization of the
politics of civil rights.
• Americans seem split down the ideological
center over the need for affirmative
action.