Civil Liberties and Civil Rights

Civil Liberties and Civil Rights

• Civil Liberties refer to constitutional freedoms spelled out primarily in the 1787 Constitution and the Bill of Rights

• Civil Rights refer to the ability to be free from discrimination; equality under the law

Civil Liberties in the 1787 Constitution

• Writ of habeas corpus cannot be suspended unless times of national emergency (Article I, Section 9)

• No bill of attainder (a legislative act finding a person guilty of a felony) or ex post facto law can be passed (Art. I, Sec. 9 and 10)

Civil Liberties in the 1787 Constitution

• Trial by jury required in criminal cases (Art. III, Sec. 2)

• Citizens of each state entitled to the privileges and immunities of citizens in other states (Art. IV, Sec. 2)

• No religious test can be required as a condition for holding public office (Article VI)

1st Amendment

• Religion, Speech, Press, Assembly, Petition• Notice that it says CONGRESS shall make no

law (the only amendment in the Bill of Rights to do so)

• This begged the question if the rest of the Bill of Rights restricted only the federal government or do they restrict the states as well?

Incorporation

• In 1833 the Court ruled that the Bill of Rts only limited the national government (Barron v. Baltimore)

• After the Civil War, the 14th Amendment was added• It reads– 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…the equal protection of the laws

Incorporation

• So, the 14th Amendment has the following which applies to the States–A privileges and immunities clause–A due process clause–An equal protection clause

Incorporation

• The intention of the 14th Amendment seemed to be to bind the states to the Bill of Rights

• However, the Court did not interpret it this way for many years, instead selectively incorporating the Bill of Rights to the 14th Amendment on a case by case basis

• In 1925 it ruled that freedom of speech applies to the states as well (Gitlow v. New York)

• In 1931, freedom of the press (Near v. Minnesota)

Incorporation

• As late as 1961 only the 1st Amendment and one clause of the 5th Amendment had been incorporated into the 14th Amendment as applying to the states

• Selective Incorporation – the process by which different protections in the Bill of Rights were incorporated into the 14th Amendment guaranteeing protection from the State governments as well as the federal government

Incorporation

• In the 1960’s, the decisions of the Warren Court incorporated most of the rest of the Bill of Rights into the 14th Amendment– Mapp v. Ohio (4th Amendment case)– Gideon v. Wainwright (6th Amendment case)– Miranda v. Arizona (5th Amendment case)

Back to the 1st Amendment

• Religion– Establishment Clause – prohibits government

support/sponsorship of religion. Separation of “Church and State”

– Free Exercise Clause – protects freedom of worship

Freedom of Religion and the Establishment Clause

• In the name of Separation of Church and State, The Court has continuously struck down, as violations of the establishment clause, practices like Bible readings and non-denominational prayers in schools (Engel v. Vitale), and pregame prayer at public sporting events

• But, it has continuously upheld public displays of religious symbols like nativity scenes

Freedom of Religion and the Establishment Clause

• Government aid to religious schools has been a thorny issue• In 1971, the Court set guidelines for

this in the case of Lemon v. Kurtzman, thereby establishing the LEMON TEST

The Free Exercise Clause

• The precedent setting case involving this issue was West Virginia v. Barnette in 1943 (during WWII)

• Involved a Jehovah’s Witness family that refused to salute the flag or say the Pledge of Allegiance on the grounds that their faith prohibited it

• The Court protected religious freedom in this particular case

Freedom of Speech

• Free political expression is the cornerstone of any free society

• Our history does have some glaring exceptions where free speech has been denied to some in the minority– The Sedition Act of 1798– Repression of political radicals during WWI

Freedom of Speech

• The first Supreme Court case dealing with free speech actually placed limits on free speech• Schenck v. United States (1919)–Speech can be limited if it creates

“a clear and present danger”

Freedom of Speech

• Since then, free speech has been consistently protected by the Court even when it is considered “insulting” or “outrageous”

• The line has been drawn when speech is designed to incite violent action

Symbolic Speech

• What constitutes “speech” has received broad interpretation as well

• The Court has ruled that actions like burning an American flag (Texas v. Johnson) and wearing arm bands in protest of war (Tinker v. Des Moines) are forms of “symbolic speech”

• State laws prohibiting these actions have been declared unconstitutional

Speech Plus

• The purpose of symbolic speech is to attract a crowd and send a message

• SPEECH PLUS – speech accompanied by actions such as demonstrating and picketing (forms of assembly), as well as handing out leaflets

• The Court has generally protected these expressions with some exceptions (if they jeopardize safety)

2nd Amendment

• A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

• The obvious big question is: Does this protect an American’s right to own different types of weaponry?

• District of Columbia v. Heller (2008) is an important, modern, 2nd Amendment case

4th, 5th, 6th, and 8th Amendments

• All deal with the rights of the accused• 4th Amendment• 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

4th Amendment

• Also known as the Privacy Amendment• Comes down to the definition of what is

reasonable and what is unreasonable–Drug testing?–Your backpack? Purse? Pockets?–Your trash in the can placed on the street?–The trunk of your car?

4th Amendment

• Warrants are prescribed in the 4th Amendment

• In 1961 (Mapp v. Ohio), The Court ruled that any evidence obtained from an illegal search may NOT be used against the accused

• This is known as the EXCLUSIONARY RULE• “The criminal is to go free because the

constable has blundered.”

5th Amendment

• Right to a Grand Jury for a capital or “infamous” crime• Protection against Double Jeopardy• Do not have to testify against themselves

(“The right to remain silent”; “I plead the 5th”)• Entitled to due process• Eminent domain clause

Grand Jury

• “The oldest institution known to the Constitution”

• Does NOT determine guilt or innocence• Determines whether sufficient evidence

is available to justify a trial• Only federal criminal cases (has not

been incorporated)

Double Jeopardy

• Cannot be put on trial twice for the same crime

• Applies to those acquitted of a criminal charge

• Emmett Till’s murderers were paid $4,000 by Look Magazine to tell their story AFTER they were acquitted of the murder charge

Self-Incrimination

• The Miranda case is the most famous

Due Process• The rights of the accused from arrest to trial– No improper searches and seizures (4th)– No arrest without probable cause (4th)– Writ of Habeas Corpus (Art. I, Sec. 9)– Miranda Rights (5th and 6th)– No excessive bail (8th)– Right to a Grand Jury (5th)– Right to a speedy and open trial (6th)– Right to confront witnesses (6th)– No Double Jeopardy (5th)– No cruel and unusual punishment (8th)

Eminent Domain

• The “takings clause”• The federal government cannot take

private property “without just compensation,” but they can with just compensation.

The 6th Amendment

• In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The Right to an Attorney

• Gideon v. Wainwright – established the legal right to counsel in all felony cases

• Over the last few decades this right has been expanded

• Most states and cities have created an office of the public defender– Provide poor people competent legal

representation

The 8th Amendment

• Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

• What constitutes cruel and unusual punishment?– Varies from generation to generation– Varies by class and race as well

The 8th Amendment

• In Furman v. Georgia (1972), the Court overturned 39 of 40 state death penalty laws because they were being applied in a discriminatory manner

• Blacks more likely to be sentenced to death than whites (convicted of the same crime)

• The poor and men more likely to be sentenced than the rich and women (convicted of the same crime)

The 8th Amendment

• The Furman case forced states to revise their procedures to meet Court standards– Sentencing was separate from the trial – More specific standards to guide the decision to

impose the death penalty• In Gregg v. Georgia (1976), the Court

determined that the steps taken by the states were appropriate

The 8th Amendment

• Website page 3 – Executions since 1976• In June 2002, The Court banned all

executions of mentally retarded defendants

The 9th and 10th Amendments

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

• 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 Federalism or States Rights Amendment

Civil Rights

• The Equal Protection Clause of the 14th Amendment provides the Constitutional basis for Civil Rights

• In both the Plessy and Brown Supreme Court decisions, the question was whether Jim Crow Laws (segregation) violated the equal protection clause

The Civil Rights Movement

• Result of a series of cumulative events– The NAACP (1909)– The Harlem Renaissance (1920’s)– Eleanor Roosevelt– Fighting against fascism in WWII– Cold War hypocrisy– Jackie Robinson– Truman’s support

The Civil Rights Movement

• The crowning legislative accomplishments of the Movement were the 1964 Civil Rights Act and the 1965 Voting Rights Act

The Civil Rights Act of 1964

• Overcame attempts by both the House Rules Committee and a Senate filibuster to kill the bill

• Outlawed discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce

The Civil Rights Act of 1964

• Outlawed discrimination in employment in any business exceeding twenty five people and created an Equal Employment Opportunities Commission to review complaints

• Barred unequal application of voter registration requirements

The Commerce Clause

• Article I, Section 8• Congress has the power to regulate

Commerce with foreign Nations, and among the several States, and with the Indian Tribes

• Ever since Gibbons v. Ogden in 1824, the Court has given the federal government authority over the states even if the “commerce” is within a state

Heart of Atlanta Motel v. U.S. (1964)

• Title II of the Civil Rights Act of 1964 forbade racial discrimination by places of public accommodation if their operations affected commerce.

• Does the commerce clause give Congress the power to deprive businesses their right to choose their own customers?

Heart of Atlanta Motel v. U.S. (1964)

• 9-0 Decision• The Civil Rights Act was constitutional• Congress has the right to regulate local

instances of commerce• Places of public accommodation had no

"right" to select guests as they saw fit, free from governmental regulation

The Voting Rights Act of 1965

• Banned the use of literacy tests• Federal oversight of voter registration in

southern states– Included a “Preclearance” requirement for any

Southern state to change their election laws including voter registration

– Must get approval from the Department of Justice

Shelby County v. Holder (2013)

• 5-4 Decision• Preclearance (Section 4) provision of the

Voting Rights Act is unconstitutional• Today the Nation is no longer divided along

those lines, yet the Voting Rights Act continues to treat it as if it were.

• Chief Justice John Roberts

The Voting Rights Act of 1965

• Has been amended a number of times since 1965 (most recent was 2006)

• In Mississippi alone, voter turnout among blacks increased from 6 percent in 1964 to 59 percent in 1969.