American GovernmentCivil Rights

Civil Rights vs. Civil Liberties

Distinction b/w Civil Rights & Civil Liberties• 1. Civil Rights – those protections by government

power• Origin: “No Taxation Without Representation”• Gained popularity with the 1960’s Civil Rights Movement

• 2. Civil Liberties – the Constitution’s protections from government power

• Society versus the Individual: The Search for a “Happy Medium.”

• The tension between the ‘right’ of the individual and the ‘right’ of the society is a constant source of debate in civil liberties discourse.

Fundamental Rights

• Government must have a compelling reason to interfere in matters protected by fundamental rights• Life• Free speech• Freedom of religion• Marriage

• Some recognized rights remain controversial as to their ‘fundamental’ nature• Privacy

• Compelling exceptions• Life – death penalty• Free speech – pornography• Religion – human sacrifice• Marriage – between same sex? between multiple partners?

Public Opinion: Having Cake

• It is often difficult to determine what public opinion is on civil rights and civil liberties.

“I believe in free speech no matter what the views expressed might be.”

AGREE 85%

DISAGRE 09%

Public Opinion: Having Cake

• Sometimes what appears to be overwhelming support for civil liberties masks significant confusions and inconsistencies.

“Should Americans be free to advocate communism? Racism?”

AGREE 40%

DISAGRE 35%

Lessons on Public Opinion

• Public opinion changes over time:• Atheist: (read a book, teach, give a speech…well under

40% in the 1950’s, over time all but ‘teach’ has gained majority support)

• Racist: (majority support for reading a book and giving a speech, but under 40% for teaching in school)

• However, when particular questions are asked, these numbers can drop.

• What does this show?• Question wording in polls is important.• Americans have conflicted opinions about civil rights and

civil liberties.• Public opinion is continually evolving on these issues.

Civil Rights: A Historical Perspective

Slavery: The Unresolved Constitutional Question

• Missouri Compromise: 1820• Missouri petitions to be admitted as a slave

state – which threatens to reform the delicate balance in Congress between slave states and free states

• Compromise admits Missouri as slave, but paired with the entry of Maine – maintaining the balance.

• South agreed to accept Missouri’s southern border as the northern boundary beyond which slavery could not extend. (36/30 parallel)

The End of Compromise

• Compromise begins to breakdown• Abolitionist movement (Free Soil Party)• Southerner’s realize the ‘compromise’ spells their

political doom• Dred Scott v. Sanford

• Every justice wrote a separate decision (5-4)• African Americans enjoy “no rights which a white man

was bound to respect.” • State laws banning slavery may be unconstitutional

• Result: Lincoln wins 1860 election and South secedes

Reconstruction

• Constitutional Amendments• Thirteenth Amendment – formal

emancipation• Fourteenth Amendment – granted

citizenship• Fifteenth Amendment – guaranteed the

right to vote• Amendments had mixed results: South

largely resistant• Black codes

Reconstruction & Electoral Politics

• Republican party faced a quandary: • the 3/5ths compromise was over and the South

stood to gain considerably as a result of blacks counted as full citizens (despite they didn’t have de facto voting rights in the South)

• The First Reconstruction Act of 1867• Disbanded the governments of the Southern

States (void their votes against 14th amendment)• Replaced them with military districts• Made readmission to the union contingent on the

Southern states’ ratification of the 14th amendment

Legacy of Reconstruction

• Reconstruction failed to grant equal rights to blacks• Jim Crow laws• Segregation• White Primary (only whites could vote in

primaries)• Poll Tax• Literacy Test• Grandfather Clauses (exempted voters from

various rules like literacy test if your grandfather had the vote b/f the Civil War)

• Plessy v. Ferguson – separate but equal doctrine

Democratic Party & Civil Rights

• The Great Depression – seeds of the Reconstruction Era’s demise

• The New Deal – garnered black support despite continued neglect of Southern segregation• Opposed anti-lynching legislation

• Roosevelt Administration did make overtures• 1. 100’s of black administrators• 2. Reinstituted civil rights division• 3. Banned employment discrimination in federal

agencies

• Migration of blacks from South to North keyed move to Democratic party

Dems & Civil Rights Continued

• Truman sees blacks as key to 1948 re-election• 1. Issued executive order integrating the

armed services• 2. Sponsored the first civil rights bill since

Reconstruction• Made racial lynching a federal crime• Provided federal guarantees for voting rights• Died in the Senate where strong Southern D’s opposed it

• Dixecrats bolt party: nominate Strom Thurmond• 1. Ran under State’s Rights Party banner• 2. Despite this, Truman wins re-election

Establishing Civil Rights Coalition

• NAACP Litigation Strategy• 1. Challenged the legal structure of segregation• 2. NAACP successes presaged by 20 years of Democratic Judicial

appointments• 3. Smith v. Allwright – ends White Primaries• 4. Brown v. Board of Education of Topeka – ends segregation

• Uneven enforcement – Federal troops were ordered into Little Rock in 1957 by Ike to enroll black students in LRHS. Oral Faubus had failed to comply.

• 1957 Civil Rights Act• 1.Permitted blacks who felt their right to vote had been denied to

sue in federal court• 2.More important as a political symbol than substantive legislation• 3. Democratic dominance in Congress set the stage for major civil

rights legislation in the 1960’s

The Civil Rights Movement

• Martin Luther King – nonviolent resistance• Supported a societal strategy that aimed at substantive

legislative success rather than using the courts

• The Birmingham Demonstration• Eugene “Bull” Connor plays into hands of demonstration

organizers hoping to bring national attention to the movement

• 2000 demonstrators were jailed• King writes “Letters from a Birmingham Jail” which provide

the philosophical underpinnings of the Civil Rights movement

• As Civil Rights became a prominent national issue, Kennedy could no longer ignore it.

Key Civil Rights Legislation

• D. The 1964 Civil Rights Act• 1. Authorized federal government to end segregation in public

education and public accommodations• 2. Goldwater moves Republican Party away from support for Civil

Rights on limited government principles.• 3. Resulted in a large landslide for Johnson.

• E. The Voting Rights Act of 1965• 1.Authorized federal agencies to guarantee the right to vote by

taking over voter registration or supervising local officials• Solved the problem inherent to previous legislation that had required

proof of discrimination• 2. Democrats new it would result in mostly new Democratic voters• 3. Justice Department could suspend restrictive electoral tests in

states with low black turnout• 4. Registration soared

Post-Civil Rights Movement

1970’s to the Present• A. School Bussing implemented to remediate de

facto segregation• de jure segregation is mandated by law• Affirmative Action

• Requires proof of past discrimination• Had to give special consideration to minorities

• The Bakke case makes the use of ‘quotas’ in AA unconstitutional, but upholds AA which uses race as a ‘factor’

• Adarand Constructors, Inc. v, Pena• Broad AA policies unconstitutional• AA must be ‘narrowly tailored’ to achieve a ‘compelling

governmental interest.’• California Prop 209

Women’s Rights

• B. Women’s Rights• 19th Amendment – women granted the

right to vote• ERA does not pass – Phyllis Schaffely key

in its failure. • ERA was linked to the abortion issue, and

hence support waned.

• Title IX – prohibits funding to schools that discriminate against women, including in sports.