Ch. 5: Civil Liberties
Unit VI: 5-15%
I. Civil Liberties and Civil Rights
A. Sources of Protection
Civil Liberties
Civil Rights
1.
Protections against
government
(Amendment 1)
Positive acts of
government that
make constitutional
guarantees a reality
for all people
(Amendment 5national gov and
Amendment 14state gov, and
congressional
legislation)
2.
3.
4.
5.
The Constitution
• No ex post facto laws or bills
of attainder, habeas corpus
Bill of Rights, and subsequent
amendments
– Guarantee of rights and
liberties
Legislation
– Civil Rights Acts of 1964 and
1968,Voting Rights Act of
1965
Court decisions
– Brown v. Board, Roe v. Wade
State constitutions
Guarantees of
safety of persons,
opinions, and
property from
arbitrary acts of
government
EX: freedom of
religion, speech
and press, right to
a fair and speedy
trial, etc.
Ex: prohibiting
discrimination, as
laid out in the Civil
Rights Act of 1964
B. Limits of Government
Nature of Civil Liberties:
1. Not absolute: they may
be exercised so long as
they do not infringe on
the rights of others
2. Balancing test: courts
balance individual
rights and liberties
with society’s need for
order and stability
To whom are they
guaranteed?
1. Most rights and
liberties are granted to
all in the U.S.
regardless of
citizenship
2. Exceptions: noncitizens may not vote,
serve on juries, stay in
the U.S.
unconditionally, or hold
public office or certain
jobs
C. Impact of Federalism
1) Bill of Rights were intended as restrictions on the national
government, not the States (Barron v. Baltimore, 1833)
2) 14th Amendment modified the Constitution
• Due Process Clause means that no State can deny to any person basic
rights and liberties. This clause bans states from denying life, liberty, or
property without due process of law. Freedom of speech, for example, is a
“liberty,” therefore states cannot deny freedom of speech without due
process of law.
• Protections set out in the Bill of Rights are also covered by the 14th
Amendment and so apply against States (“process of incorporation”)
• The “total incorporation” view would apply all of the provisions of the Bill
of Rts. to the states. It argues for nationalization of the BOR.
• The “selective incorporation” view would apply only some of these
provisions, and would do so on a gradual, case-by-case basis over time.
• Gitlow v. NY, 1925:
• Court upheld conviction of Gitlow (a communist), but added that
states may not deny freedom of speech and press, protected by the
14th A. Due Process Clause
3) Selective Incorporation
Subsequent cases nationalized the following parts of the BOR on a selective
incorporation basis:

Assembly (1st)

Petition (1st)

Religion (1st)

Right to bear arms (2nd) (McDonald v. Chicago, 2009)

Search and seizure protections (4th)

Self-incrimination (5th)

Double jeopardy (5th)

Right to counsel (implied by 5th – Miranda; stated in 6th)

Right to bring witnesses (6th)

Right to confront witnesses (6th)

Protection against cruel and unusual punishment (8th)
Which rights must states uphold? The Palko test (Palko v. CT, 1937) tells us
that any right that is so important that liberty would not exist without it
must be upheld by states.
All provisions of the BOR except Amendments 3, 7, and 10 as well as grand
jury requirement of the 5th & excessive bail in 8th have been nationalized,
4) 9th Amendment
•
•
•
•
•
•
Declares there are rights beyond those expressed in the Constitution (the
“enumerated” rights)
Examples of “other” rights protected by the 9th Amendment:
Privacy (Griswold v CT, 1965)
Travel
Freedom of Association (Boy Scouts of America v. Dale, 2000 – Boy Scouts
can ban homosexuals from being scout leaders via Amendment 1 and 9)
Homosexual conduct (Lawrence v. TX, 2003: using the right of privacy, this
decision struck down a TX law that banned sodomy. It reversed the decision
of Bowers v. Hardwick, 1986, which upheld a Georgia law banning sodomy.)
II. The 1st Amendment: Free Expression


Guaranteed by the 1st and
14th Amendments for spoken,
written, and other forms of
communication to ensure
open public debate of ideas,
especially unpopular views
◦ “freedom for the thought
that we hate” (Holmes)
Belief is most protected,
action can be most restricted,
but speech falls somewhere in
between
A. Historic Tests used by courts to
determine if speech is protected
Bad tendency doctrine (restrictive test)
1.
◦
State legislatures, not the courts, should generally determine when speech
should be limited – when it might lead to harm/illegal action.
Clear and present danger doctrine.
2.
◦
Schenck v. U.S., 1919. Case involved a man who was urging men to avoid
the draft. Upheld, however: Speech can be suppressed only if there is an
imminent threat to society (fire in a crowded theater).
Preferred position doctrine.
3.
◦
Free speech is of utmost importance and should thus occupy a “preferred
position” above other values; gov should virtually never restrict it.
B. Non-protected speech
Libel and slander (NY Times v. Sullivan,
1968)
2. Obscenity (Miller v. CA, 1973)
3. Commercial speech is subjected to more
regulation than political speech
4. Sedition:
1.
◦
◦
◦
◦
Alien and Sedition Acts (1798): sedition could
be criticism of the government
Smith Act, 1940: banned advocacy of
overthrowing the government
Dennis v. U.S., 1951- upheld Smith Act
Yates v. US, 1957 – advocacy alone does not
create a “clear & present danger,” but urging
concrete action does
C. Protected Speech
1.
◦
◦
2.
3.
4.
◦
◦
5.
◦
◦
◦
Prior Restraint: Blocking speech before it is given (or published)
unconstitutional
In the Pentagon Papers case, the court refused to impose prior
restraint
Clarity:
Least-restrictive means:
Centrality of political speech: given special protection because of
its importance in a democracy. (Are corporations “people?”)
McCain-Feingold 2002 (BCRA) placed restrictions on
electioneering communications (upheld:McConnell v. FEC, 2003)
Overturned (parts) by Citizens United v. FEC, 2010
Symbolic speech
Between speech and action. Generally protected.
U.S. v. O’Brien, 1968:
Texas v. Johnson, 1989
Tinker v. Des Moines, 1969:
U.S. v. Eichman, 1990
D. Freedom of the Press
1.
2.
3.
4.
5.
6.
7.
8.
9.
Right of access:
“sunshine laws”
Freedom of Information Act (1966)
Electronic FIA (1996)
Executive privilege:
◦ U.S. v. Nixon, 1974:
Shield laws:
Defamation: NY Times v. Sullivan
Obscenity: Miller set 3-part test:
1) Community standards must be violated
2) State obscenity laws must be violated
3) Material must lack serious literary, artistic, or political value.
Student press: Hazelwood v. Kuhlmeier, 1988
10. Regulation of Electronic Media
Radio and TV must comply with FCC
regulations to get license
 Fairness Doctrine
 FCC restricts use of obscene words
 Communications Decency Act (CDA)
1997, struck down by Court
 Ashcroft v. ACLU, 2002:

E. Freedom of Assembly and Petition
Freedom of Petition
1.
Right to petition the gov for redress of
grievances
2.
Constitutional justification for lobbying
3.
Also provides constitutional basis for
freedom of association (2 types):

Political association (parties, interest
groups, and PACs)

Personal association (private clubs) Boy
Scouts v. Dale, 2000
1.
Limited by the Hatch Act
2.
Limited by restrictions on campaign
contributions, but Court struck down
limits on spending in Buckley v.Valeo,
1976 and on contributions in Citizens
United v. FEC, 2010
Freedom of Assembly
 Government may regulate the
time, place, and manner of
assemblies
 Rules must be specific,
neutral, and equitably
enforced
 Applies to public, not private,
places
III. Freedom of Religion
A. Protected by the 1st and
14th Amendments:
1. Establishment Clause
2. Free Exercise Clause
3. Article VI bans religious
tests and oaths as a
qualification to hold public
office
Separation of Church and State
1.
2.
3.
4.
5.
The Establishment Clause. Basic
meaning: Government may not
establish an official religion.
Separationist view: (Jefferson’s
“wall of separation.” Freedom
FROM religion.
Accommodationist View:
Endorsement view
Non-preferentialist view:
A. Most challenges to the
Establishment Clause deal with
religion and education
1. Pierce v. Society of Sisters, 1925
2. Everson v. Board of Ed, 1947 (NJ
School Bus Case)
Religion and Education
B.
Release Time
1.
Zorach v. Clauson, 1952
C. Prayers and the Bible
1.
•
2.
3.
4.
5.
6.
7.
Engel v.Vitale, 1962
Basis: the government must
“maintain strict neutrality,
neither aiding nor opposing
religion”
Abbington v. Schempp, 1963
Epperson v. Arkansas, 1968
Stone v. Graham, 1980
Wallace v. Jaffree, 1985
Lee v. Weisman, 1992
Santa Fe School District v.
Doe, 2000
D. Student Religious Groups
Equal Access Act of 1984
–
Westside Community
Schools v. Mergens, 1990
E. Aid to Parochial Schools
States give aid to private
schools for transportation,
books, standardized testing,
lab equipment, etc.
– Reasoning:
1. Schools enroll large
numbers of students
2. Double burden of
parents financially
3. Schools devote time to
secular subjects
(Zelman v. Simmons-Harris,
2002)
–
F. The Lemon Test
1. Court uses to determine the
legitimacy of aid (Lemon v.
Kurtzman, 1971)
1.
2.
3.
Purpose must be secular
It may neither advance nor
inhibit religion
It must avoid “excessive
entanglement of government
and religion”
G. Other Establishment Clause
Cases:
2.
3.
Seasonal displays cannot endorse
Christian doctrine, but can
include religious objects if nonreligious objects are featured
Prayer in Congress (Marsh v.
Chambers)
Free Exercise Clause
1. Guarantees each person the right
to believe whatever they choose
in matters of religion
2. Does not give the right to violate
laws, offend public morals, or
threaten the health, safety, or
welfare of the community
Religious Practices that have
been restricted:
Religious practices that have
been permitted:
1. Reynolds v. U.S., 1879
2. Jacobson v. Massachusetts,
1905
3. Welsh v. U.S., 1970
4. U.S. v. Lee, 1982
5. Oregon v. Smith, 1990
1. West VA Board of Ed v.
Barnette, 1943
2. Wisconsin v.Yoder, 1972
3. Church of Lukumi Babalu
Aye v. Hialeah, 1993
IV. Due Process of Law
I. Meaning of Due Process
1. 2 Clauses:
–
–
5th:
14th:
2. The government must act
fairly and in accordance
with established rules.
Substantive vs. Procedural Due
Process
1.
2.
3.
4.
Substantive DP:
Procedural DP:
Rochin v. CA, 1952
Pierce v. Society of Sisters,
1925
4th Amendment: Searches and Seizures
A. Police have no right to search
for or seize evidence or people
unless they have a proper
warrant obtained with probable
cause
B. Arrests (“seizures”)
Illinois v. Wardlow, 2000
C. Searches :
1. Automobile Exception
 Michigan v. Sitz, 1990
 California v. Acevedo, 1991
 Wyoming v. Houghton, 1999

Wiretapping:
◦ FISA Court
◦ Patriot Act 2002
SEARCH CASES:
 Florida v. J.L., 2000
 Minnesota v. Carter, 1999
 California v. Greenwood, 1988
 Michigan v. Tyler, 1978

D. Exclusionary Rule
Evidence gained illegally cannot
be used against a person in
court
CASES:
 Weeks v. U.S., 1914
 Mapp v. Ohio, 1961
Exceptions:
 “Inevitable discovery” (Nix v.
Williams, 1984
 “good faith rule” (U.S. v. Leon,
1984 and Arizona v. Evans,
1995)
 “honest mistakes” (Maryland
v. Garrison, 1987)
1.
2.
Critics claim that it lets
criminals “off the hook” on
technicalities. They ask why
society should pay for the
misconduct of a few police
officers.
Supporters claim that it
discourages police
misconduct
E. Rights of the Accused
1. Writ of Habeas Corpus
2. Bills of Attainder
3. Ex Post Facto Laws
F. 5th Amendment
I. Grand Jury
• In federal cases, the
Constitution provides for a
grand jury:
2. Double Jeopardy
• The 5th Amendment
3. Self-Incrimination
• The 5th also guarantees against
self-incrimination
• The Miranda Rule states that
police must inform a person of
their rights before being
questioned (Miranda v.
Arizona, 1966)
4. Witnesses:
5. 5th Amendment: Eminent Domain
Property rights vs. public welfare
 States MAY impose limits on property
rights:

◦ States may exercise police powers to protect
public health, safety, welfare, and morals
◦ States may exercise right of eminent domain:
 Kelo v. City of New London, 2005
G. The 6th Amendment
1. Speedy and Public Trial
• In most cases, trials must be
within 100 days of arrest
• Right of a public trial
belongs to the defendant,
not the media
2.Trial by Jury
• Guaranteed in criminal
cases (though most cases
are disposed of by plea
bargaining)
• Guaranteed in civil cases
worth more than $20 (7th
Amendment)
3. Right to Counsel
• CASES:
• Gideon v. Wainwright, 1963
• Escobedo v. Illinois, 1964
H.The 8th Amendment
I. Bail and Preventative
Detention
• Justification for bail:
• 1984 Preventative Detention
Congressional Law:
2. Cruel and Unusual
Punishment: Capital
Punishment
• Is Constitutional, but certain
methods are banned
• 1972: Furman v. Georgia
• 1976: Gregg v. Georgia, the Court
has ruled that the death penalty
can only be applied in cases
resulting in the death of the
victim, and those in which
mitigating circumstances apply
• 2-step process
• Ewing v. CA, 2003: 3-strikes law
Death Penalty Cases:
•
•
•
•
•
•
•
Furman v. Georgia, 1972
Gregg v. Georgia, 1976
Coker v. Georgia, 1977
Roberts v. Louisiana, 1977
Atkins v.Virginia, 2002
Ring v. Arizona, 2002
Roper v. Simmons, 2005
CH. 6: CIVIL RIGHTS
I. Struggle for Equal Rights: Blacks
A.
B.
◦
◦
C.
D.
E.
F.
◦
◦
G.
Dred Scott decision, 1857, denied the right of Scott to sue-slaves were not
citizens.
Civil War Amendments: 13, 14, 15-to protect blacks against state
governments
5th & 14th prohibit government from discriminating, but what about
protection from private acts?
13th has been broadly interpreted to prohibit the “badges” of slavery,
Commerce Clause, power to tax and spend
Plessy v. Ferguson, 1896
Barriers to de jure segregation: use of the courts-Brown v. Board, 1954
Civil disobedience in 1950s-60s, violent demonstrations 1960s
Civil Rights Act of 1964:
Title II bans discrimination in places of public accommodation on the
basis of race, color, national origin, or religion. Based upon Congress’
power to regulate interstate commerce.
Title VII: prohibits employment discrimination (sex & race), required
federal contractors to adopt affirmative action, enforced by EEOC
Civil Rights Act of 1968 (Fair Housing Act)
H.Voting Rights Act of 1965
15th A. banned voting discrimination, but states found ways: white
primary, poll tax, literacy tests, grandfather clause. Remedies:
1.
Banned literacy tests
2.
Allowed federal officials to register voters and ensure they could
vote, to count ballots
3.
Amendments require states to include ballots in other languages
4.
States with a history of voting discrimination must clear w/
Justice any changes in voting practices (SC, TX 2012)
5.
Resulted in huge increases in black turnout, black elected officials,
and voter power
Black Elected Officials in the US
10000
9000
8000
7000
6000
5000
4000
3000
2000
1000
0
1970
1975
1980
1985
Year
1990
1995
2000
II. Struggle for Equal Rights: Women
A.
B.



◦
◦
◦
◦

◦
◦

◦
First Wave: Seneca Falls (1848), 19th Amendment (1920)
2nd Wave: 1960-present
The Feminine Mystique, Betty Friedan (1963)
NOW, Emily’s List and other women’s groups
Legislation:
Equal Pay Act of 1963
Civil Rights Act of 1964, Title VII
ERA
Title IX of Education Act of 1972
Cases: (Reasonableness Test)
Reed v. Reed, 1971
Roe v. Wade, 1973
Electoral Success: 1992-Year of the Woman: many women elected to
Congress
Rise of women representatives in Congress, on Court, as constituent
voting bloc
III. Equal Protection Under the Law
A.
B.
Discrimination
◦
Classification/treating groups differently usually on ethnic or racial
lines
◦
Some is inevitable (age requirements, income tax)
◦
Issue: are such differences “reasonable”
◦
14th Amendment (1868) Equal Protection Clause bans the states
from unreasonable discrimination
Court tests:
1. Rational basis test: discrimination is constitutional if it has a
reasonable relationship to a broader purpose of gov

Cannot be used if a case involves a suspect class, an almostsuspect class, or a fundamental right
2. strict scrutiny: Suspect classifications test

Suspect class: a class that has historically suffered unequal
treatment on the basis of race or national origin

Discrimination is subject to strict scrutiny: there must be a
compelling purpose for the discrimination to be constitutional
3. Fundamental Rights Test
 Those which are explicitly stated in the Constitution, and implied,
such as: travel, political association, privacy
Abortion cases:
◦ Roe v. Wade, 1973: based on right to privacy implied in the Bill of
Rights (Griswold v. CT, 1965)
◦ Webster v. Reproductive Health Services, 1989
◦ Planned Parenthood v. Casey, 1992
◦ Gonzales v. Carhart, 2007
Voting:
◦ Bush v. Gore, 2000
Same-sex marriage:
◦ Six states allow it (MA, CT, IA,VT, NH, NY), and D.C.
◦ DOMA (1996); Obama (2011) DOJ will no longer defend (14th)
Gay rights:
◦ Lawrence v. TX, 2003
Affirmative Action
◦
◦
4.
◦
◦
◦
Strict Scrutiny cases:

UC Regents v. Bakke, 1978,

Gratz v. Bollinger, 2003,

Grutter v. Bollinger, 2003;

CA Prop 209
Racial gerrymandering banned:

Shaw v. Reno; Miller v. Johnson
Reasonableness Test:
For quasi-suspect class: sex
Not quite as high as for race
Discriminatory laws must be reasonable, not arbitrary, and
bear some relation to gov. objective
IV: Struggle for Equal Rights-Other Groups
A. For Hispanics:
 Key issues:
 Bilingualism - Lau v. Nichols,
1974:
 States must now provide
bilingual ballots for areas with
a high concentration of nonEnglish speakers
 Immigration
 Electoral politics: W. and Jeb
Bush had Hispanic vote, but
so did Obama
B. For Asians:
 Key Issues:
 Immigration restriction in the past
 Internment, Korematsu v. U.S.
1944; reparations
 “reverse discrimination” in college
admissions
 “model minority”
C. Age/Disability:
 Age Discrimination in Employment
Act, 1967:
 ADA, 1990: bans job and access to
facilities discrimination if
“reasonable accommodation” can
be made
Blacks, Hispanics, and Women as a
Percentage of State Legislators and Voting
Age Population, 2001
60
Percentage
50
% of Group's Elected
Legislators
40
30
% of Group's Voting Age
Population
20
10
0
Blacks
Hispanics
Women
Number of Hispanic Elected Officials in the
US
6,000
5,000
4,000
3,000
2,000
1,000
0
1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994
Year
V. Citizenship
A. Methods of Acquisition:
1. Birth
Jus soli
◦ All born in the U.S.,
regardless of parentage, are
citizens as per 14th A.
Jus sanguinis
◦ Anyone born to U.S.
citizens living overseas is a
citizen
◦ Possibility of dual
citizenship
2. Naturalization:
individual or collective
B. Methods of losing:
1. Expatriation
2. Denaturalization
C. Aliens
1. Types:
 Resident
 Nonresident
 Illegal
 Enemy
 Refugee
2. Rights: mostly the same as citizens
with some exceptions:
 Suffrage
 Serving on juries
 Holding certain jobs (teachers,
police officers)
 Unconditionally staying in U.S.
D. Entry into U.S.
 Current law allows
~675,000 to be legally
admitted each year
 Based on preference
system:
◦ Relatives in U.S.
◦ Needed job skills
◦ “diversity exceptions”
for Europeans
 Political refugees
(~100,000) allowed above
675,000
E. Simpson-Mazzoli Bill of 1986:
Provisions for illegal aliens:
 Amnesty for those here
before 1982
 Fines for employers who
knowingly hire illegal workers
 Certain number of aliens
allowed to enter each year as
temporary farm workers
F. Sources of Immigration:
 Pre-1880: primarily Northern
and Western Europe
 1880-1920: primarily from
Southern and Eastern Europe
 1924: National Origins Act-set
a nation-by-nation quota
system that gave large quotas
to N. and W. European
nations, but smaller ones to S.
and E. Europe and Asia
 1965: National Origins Act
repealed; replaced with
preference system
◦ Most immigrants now from
Latin America and Asia