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C H A P T E R S 4 & 5

CIVIL RIGHTS AND CIVIL LIBERTIES

WHAT’S THE DIFFERENCE?

•  Civil rights are: •  Those protection by government power •  Things government must secure on behalf of its citizens •  Equal opportunity

•  Civil liberties are: •  The Constitution’s protections from government power •  Rights that cannot be taken away: speech, religion, etc.

RIGHTS VS. LIBERTIES

• Civil Rights: Government must actively protect and guarantee these

• Civil Liberties: Government must not interfere with these

WRITING RIGHTS AND LIBERTIES INTO THE CONSTITUTION

•  Initially, the Constitution did not seriously address civil liberties

•  Framers had two reasons for this: •  Institutions •  Omission of rights

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THE BILL OF RIGHTS CHECKS MAJORITY RULE

•  Framers understood that civil liberties policy would at times check majority preferences.

•  Many liberties are protected by the bill of rights.

THE BILL OF RIGHTS CHECKS MAJORITY RULE

•  The Bill of Rights checks majority rule

•  But clarity can be an issue: •  Establishment clause of First Amendment: does it prevent

prayer in public schools? •  Eight amendment: what does “cruel and unusual

punishment” mean?

CIVIL LIBERTIES: INCORPORATION

INCORPORATION

•  So you have the rights all the time right?

•  Read the first amendment.

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INCORPORATION

•  Barron v. Baltimore (1833): Public state blockage of a private wharf. Barron sued arguing the 5th amendment (no person shall be deprived of property without due process of law) applied at the state level.

•  The Court said no, it doesn’t.

INCORPORATION

•  Incorporation is the process of bringing state laws and practices under Bill of Rights protections by applying the Fourteenth Amendment to the states.

INCORPORATION

•  Original intent of the 14th amendment was to protect the rights of African Americans after the civil war

14TH AMENDEMNT

•  Section 1: All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

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14TH AMENDMENT

•  Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

14TH AMENDMENT

•  Section 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

14TH AMENDMENT

•  Section 4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

14TH AMENDMENT

•  Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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INCORPORATION

•  The courts have gradually incorporated important amendments

INCORPORATION

•  First in 1897 with the fifth amendment (taking property without compensation)

•  In the 1930s and 1940s the First Amendment freedoms were taken up by the court

•  In the 1960s, the fourth amendment (search and seizure), the fifth amendment (double jeopardy, self incrimination, etc) and the sixth amendment (right to speedy trial, confrontation of witnesses)

•  The 2nd amendment wasn’t incorporated until 2010!

THE AMENDMENTS

THE FIRST AMENDMENT

•  First amendment: “Congress shall make no law,”

•  Six different area of personal and political liberty: •  Respecting an establishment of religion •  Or prohibiting the free exercise thereof •  Or abridging the freedom of speech •  Or of the press •  Or of the right of the people peaceably to assemble •  And to petition the government for a redress of grievances

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FREEDOM OF SPEECH

•  1: freedom of speech.

•  Freedom of speech is essential to representative government and the exercise of individual autonomy. •  But what is legitimate expression? •  What can I say and not go to jail? •  How does one balance free speech against other rights?

•  http://www.colbertnation.com/the-colbert-report-videos/308089/april-28-2010/difference-makers---robert-ekas

FREE EXPRESSION AND NATIONAL SECURITY

•  Near the end of WWI many states had enacted sedition laws.

•  Schenck v. United States (1919) – attempt to define the degree to which federal legislation must protect free speech.

•  Justice Oliver Wendell Holmes created the “clear and present danger test.”

CLEAR AND PRESENT DANGER

•  “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”

THE PRESS VS INDIVIDUAL RIGHTS

•  Libel: False and malicious information that damages another person’s reputation.

•  Slander: the spoken form of libel

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THE PRESS VS INDIVIDUAL RIGHTS

•  The court has been willing to protect private citizens from libel. •  However, public figures largely forfeit their right to privacy

and must prove malice and harm. •  This raises the burden of proof so high that they stand little

chance of winning their cases in court. •  They must prove that the statement was knowingly false

and intended to harm.

THE PRESS VS THE GOVERNMENT

•  Can government prevent media from publishing something? •  This is called prior restraint •  New York Times v. United States (1971): Court held that

national government must meet burden of proof to enforce prior restraint.

FREEDOM OF RELIGION

•  Madison and Jefferson both subscribed to the view that the First Amendment places a “wall of separation” between church and state.

•  The notion has not been followed consistently by Congress or the Court.

ESTABLISHMENT

•  School prayer

•  In Lemon v. Kurtzman (1971): the Lemon test for legislation concerning religion. A piece of legislation:

1. must have a secular legislative purpose 2. must not have the primary effect of either advancing or

inhibiting religion 3. must not result in an "excessive government entanglement"

with religion

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ESTABLISHMENT

•  Now, the general rule is the “neutrality” test: Does a government action unfairly favor a religious group over a secular group?

SCHOOL PRAYER

•  Engel v. Vitale (1962): New York State-composed prayer unconstitutional

•  1985: AL cannot mandate a moment of silence at the beginning of each school day

•  1992: No benediction prayers at graduation/commencement ceremonies

SECOND AMENDMENT

•  The Supreme Court generally supports gun rights

•  What kind of gun it can be? What kinds of regulations can be applied?

•  Incorporated very late – in 2010 by McDonald v. Chicago

FOURTH AMENDMENT

•  Unlawful search and seizure

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FIFTH AMENDMENT

•  The fifth amendment states that no person shall “be compelled in any criminal case to be a witness against himself.”

FIFTH AMENDMENT

•  Miranda v. Arizona (1966) •  Ernesto Miranda signed a confession to a kidnapping and

rape. •  The case is appealed, then appealed again to the SC. •  The court ruled that the confession could not be used in

court.

SIXTH AMENDMENT

•  The right to counsel and impartial jury of peers. •  Full incorporation took place in 1963, in Gideon v.

Wainwright •  Gideon was accused of robbing a pool hall. He asked for a

lawyer but was turned down and sent to prison. •  Gideon researched the law in prison and sent his own

handwritten petition to the Supreme Court. •  The SC found that his constitutional rights had been denied.

In a second trial, Gideon was acquitted.

EIGHT AMENDMENT

•  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

•  The death penalty is the most important and contentious policy issue falling under the Eighth Amendment.

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PRIVACY

•  A right to privacy is not explicitly stated in the Bill of Rights

•  The Supreme Court did not recognize its existence until 1965 in Griswold v. Connecticut

PRIVACY

•  Where in the Constitution is there a right to privacy? •  First Amendment: freedom of association? •  Third Amendment: freedom from quartering soldiers in

peacetime? •  Fourth Amendment: freedom from unreasonable

search and seizure? •  Fifth Amendment: freedom from self-incrimination? •  Ninth Amendment: “The enumeration in the

Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

PRIVACY

•  First established in Griswold v. Connecticut (1965) •  Dealt with reproductive rights, which is where the implied

privacy right has been most often discussed

•  Continued with Roe v. Wade (1973) which legalized abortion in certain instances.

•  In 1986 the Court turned away a suit challenging a Georgia law prohibiting homosexual acts between consenting adults.

•  However, the Court reversed itself in 2003 in Lawrence v Texas with a 6 to 3 vote.

CIVIL RIGHTS

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CIVIL RIGHTS

•  Most of the history of civil rights in the US deals with the rights of African Americans

•  Also extended to other groups: •  Women •  Hispanics •  Immigrants •  LGBT •  Disabled

THE FOUNDERS AND SLAVERY

•  No regulation of slave trade for 20 years after ratification

•  1807: Ban on slave importation •  Uncontested by South •  No new slave imports meant current slaves were worth

more on the market

THE HEIGHT OF SLAVERY

•  1819: Missouri petitions for statehood as slave state •  Missouri Compromise (1820): Pairs MO and ME as slave-

and free-states, sets northern boundary on slavery at 36°30’

•  David Wilmot (D-PA) – the Wilmot proviso

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THE HEIGHT OF SLAVERY

•  Admission of CA as free state required passage of Fugitive Slave Law

•  Compromise of 1850 - popular sovereignty

•  Dred Scott v. Sandford (1857) overturns MO Compromise

THE CIVIL WAR AND EMANCIPATION

•  Election of 1860

•  Secession of Southern states à Civil War

•  1862: Emancipation Proclamation

•  Slavery officially ended with 13th Amendment (1865)

•  Postwar period dominated by Reconstruction

RECONSTRUCTION AND THE CIVIL RIGHTS AMENDMENTS

•  13th Amendment would have given South majority, but Republicans in Congress were smart

•  14th Amendment (1868) ratified to provide due process and equal protection for all •  Also reduced apportioned seats for states where right to

vote was curtailed •  Passed because former CSA state governments disbanded

and replaced with military districts

•  15th Amendment (1870) officially enfranchised blacks

DENIED THE RIGHT TO VOTE

•  1876 presidential election ended Reconstruction

•  1890s and Jim Crow laws/segregation

•  Upheld in Plessy v. Ferguson (1896)

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DENIED THE RIGHT TO VOTE

•  Southern states prevented blacks from voting using: •  White primaries •  Poll taxes •  Literacy tests

LITERACY TESTS

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BLACKS BECOME DEMOCRATS

•  Blacks were hard hit by the Great Depression, but still voted Republican in 1932

•  The New Deal did a lot for poor African Americans, so they supported FDR in 1936

•  Blacks migrated North for work, where there were fewer barriers to voting •  Now made up a sizeable portion of the Democrats’ base

•  Truman integrated the military and proposed comprehensive civil rights legislation •  Adopted pro-civil rights platform in 1948

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CIVIL RIGHTS LEGISLATION

•  1957: Senate Majority Leader Lyndon Johnson (D-TX) introduces a Civil Rights Act •  Represented major step for Democratic Party •  Allowed blacks to sue in federal court for being denied right

to vote based on race

•  Civil Rights protests in 1960s begin to draw national attention

1964 CIVIL RIGHTS ACT AND 1965 VOTING RIGHTS ACT

•  1964 Civil Rights Act •  Republicans—led by Barry Goldwater—opposed it •  Officially ended segregation and gave federal government

authority to enforce it

•  1965 Voting Rights Act •  Authorized Department of Justice to ensure equal voting

rights •  States had to obtain Justice Dept. clearance to change

voting laws •  Led to a huge increase in black registration—all favoring the

Democrats

POST-1960S CIVIL RIGHTS REFORM

•  Courts and Justice Dept. took to busing students to distant schools to force integration

•  Affirmative action policies sought to compensate

for years of discrimination in employment •  Regents of the University of California vs. Bakke (1978)

outlawed racial quotas •  Schuette v. Coalition to defend affirmative action (this

morning)

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CIVIL RIGHTS FOR WOMEN

•  A number of issues that are still disputed: maternity leave, hiring discrimination, pay gaps

•  Lilly Ledbetter vs Goodyear Tire and the Fair Pay Act.

CIVIL RIGHTS FOR HISPANICS

•  1970: Voting Rights Act extended to require that ballots also be available in Spanish where Hispanic population >5 percent of population

•  Alexander v. Sandoval (2001): States can have English-only driver’s license tests

•  Illegal Hispanic immigrants enjoy fewer rights than legal immigrants or naturalized citizens •  AZ, GA, AL laws

CIVIL RIGHTS FOR THE LGBT COMMUNITY

•  Lawrence v. Texas (2003) protected privacy for the gay community by declaring state antisodomy laws unconstitutional

•  17 states (+DC) currently have legalized same-sex marriage

•  The federal government has recently joined this issue with repeal of “don’t ask don’t tell”

CIVIL RIGHTS FOR THE DISABLED

•  1990 Americans with Disabilities Act

•  What constitutes a disability? •  “… a physical or mental impairment that substantially limits

one or more of the major life activities.”

•  Supreme Court decisions: •  Sutton v. United Airlines (1999): If vision correctable to 20/20,

ADA doesn’t apply, so airline can refuse to hire •  PGA Tour v. Martin (2001): Casey Martin can use golf cart in

PGA tournaments because his atrophied leg constitutes a disability