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.

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Incorporating the Bill of Rights into the 14th Amendment

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 9th Amendment

• The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

The 10th 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 StateState 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 – 1964Phase 2

• Public Accommodations• Interstate Commerce

Commission• Busing (education phase II)• Title IV

– Justice Department Suits– Federal Grants

• Title VII– Employment– Contracts controls

• 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 theBurden 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 theBurden 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.