Civil Liberties, Vs Civil Rights; Best
description
Transcript of Civil Liberties, Vs Civil Rights; Best
Civil Liberties & Civil Rights
The Evolution of the Bill of Rights
What Civil Liberties Do You Value Most?
1. Freedom of Speech2. Freedom of Religion3. Right to a jury trial4. Freedom of the press5. Freedom from cruel and unusual punishment6. Right to keep and bear arms7. Right to control your own property8. Freedom of assembly9. Freedom from quartering troops in your own
home10.Freedom from unreasonable searches and
seizures
U.S. Bill of Rights
The Bill of Rights (i.e., the first 10 amendments to the U.S. Constitution) were adopted in 1791 to protect citizens from “improper” government action
Liberty Rights
Freedom Government
Control
Civil Liberties and Civil Rights:What’s the Diff?
Civil Liberties• The Bill of Rights• The legal
constitutional protections against the government
• Limitations on government power
• What the government cannot do
Civil Rights• 14th Amendment• What the
government must do to ensure equal protection
• Protects against discriminatory treatment
• Require government action
Civil Liberties and the Supreme Court
• Judicial interpretations shape the nature of civil liberties, and as these interpretations change over time, so do our rights
• To understand the civil liberties and freedoms we have, we will examine several key Supreme Court decisions
• One of the most common controversies addressed by the court:• Should the Bill of Rights apply to STATE
governments?
The Incorporation of the rights
• Barron v Baltimore 1833• Fourteenth Amendment • Gitlow v New York 1925
• Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
The Incorporation of the rights
• Gitlow v New York 1925• Question:
•Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment?
• Conclusion: •Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
Selective Incorporation of the Bill of Rights
• The BoR were originally written to protect citizens from the national government (“Congress shall make no law…”)• Barron v. Baltimore (1833): The BoR only
apply to national government… NOT the states
• However, over time most liberties protected by the BoR have been “selectively incorporated” (or applied) to the states through the 14th Amendment’s due process clause
Selective Incorporation of the Bill of Rights
• The first Supreme Court case to “selectively incorporate” a part of the BoR was Gitlow v. New York (1925)• Applies first Amendment protection of free
speech to the states
• Since Gitlow, the Supreme Court has gradually incorporated other selected parts of the BoR to the states
First Amendment Conflicts
• Just how does the Constitutional statements about religion and gov’t conflict?•establishment clause•free exercise clause
http://schlissellaw.files.wordpress.com/2009/04/establishment-clause-separation-church-state1.jpg
Rights in Conflict
We know people support rights in theory but their support may disappear when it comes time to put those rights into practice - ex: demands of American Nazi Party in 1977 to march through a Jewish neighborhood in Skokie, Ill
Freedom of Religion
Two Key Principles• The Establishment Clause: The
Separation of Church and State• “Congress shall make no law respecting the
establishment of religion…”
• The Free Exercise Clause:• Prevents the government from prohibiting
individuals from practicing religion of their choice
• How can these two conflict with one another?
Effective Oral Arguments
Morse v. Frederick (2007)
• At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus.” Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick argued this action was a violation of his First Amendment right to freedom of speech.
Freedom of Religion
• Lemon v. Kurtzman (1971): Direct state-aid cannot be used to fund religious instruction
• Set-up the three-part “Lemon test:”• For a law to be constitutional under the
establishment clause, it:• Must have a secular (non-religious) legislative purpose• Can neither advance nor inhibit religion• Must not result in excessive government
“entanglement”
• If any of these conditions are violated, the law is unconstitutional… but Court has changed opinion
Freedom of Religion
The Establishment Clause: Other Issues• Does prayer in public schools violate Establishment Clause?• YES! Engel v. Vitale (1962) and Wallace v. Jaffree (1985)
• What about prayer at graduations? • YES! Lee v. Weisman (1992)
• Can families use state issued credits (vouchers) to “purchase” private, religious education?• YES! Zelman v. Simmons-Harris (2002)
• What about displays of the Ten Commandments in courthouses and other government buildings?• Yes (Van Orden v. Perry) and No (McCreary County v. ACLU), 2005• Supreme Court… OK to display as long as it is secular
Freedom of Religion
The Free Exercise Clause• Prohibits government from
interfering with the practice of religion• But not always…. Reynolds v. U.S.
(1879)• Some religious practices may
conflict with other rights, and then be denied or punished• Oregon v. Smith (1990): Supreme
Court rules that the state of Oregon could deny unemployment benefits to two drug counselors for using peyote religiously
• Controversial… Freedom Restoration Act (1993) passed in response. Declared unconstitutional
Freedom of Speech, Press and Assembly
“Congress shall make no law… abridging the freedom of speech or of the press”
• What is the purpose of free speech and the press?
• Important Note: Free speech and press are NOT absolute (without restriction)
• Thus, when it comes to free speech and the press, it is up to the Supreme Court to determine what the government can and cannot regulate
Freedom of Speech, Press and Assembly
Limiting Speech to Ensure Public Order• Schenck v. U.S. (1919). Can the
government limit free speech during wartime? • Clear and present danger test
• Brandenburg v. Ohio (1969) But what constitutes a danger? • The direct incitement test: the government
can punish speech that will likely lead to imminent illegal behavior
• Makes it more difficult to punish speech
Freedom of Speech, Press and Assembly
Protected Speech• The Supreme Court will not tolerate prior
restraint (censorship) of speech or the press (before the fact)• Near v. Minnesota (1931): selectively incorporates free
press• New York Times v. U.S. (1971) and the Pentagon Papers
• The Court has also extended protections to symbolic speech• Tinker v. Des Moines (1969)• Texas v. Johnson (1989) protects flag burning as
symbolic speech
Freedom of Speech, Press and Assembly
Protected Speech• Freedom NOT to Speak
• West Virginia v. Barnette (1943): Students cannot be compelled to salute the flag
• “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” (Justice Jackson)
Freedom of Speech, Press and Assembly
Protected (and Unprotected) Speech• Hate Speech and “Fighting Words:”
Can the court regulate these types of speech?• Chaplinksy v. New Hampshire (1942): Words
that instigate another person to fight can be regulated and are not protected by the first amendment
• BUT, in R.A.V. v. St. Paul (1992), the Court ruled that the first amendment prohibits the governments from “silencing speech on the basis of content” (i.e. hate speech)
Freedom of Speech, Press and Assembly
Unprotected Speech:• Defamation of character: Libel
(written) and slander (spoken)• NY Times v. Sullivan (1964): Court
declares that libel must show “actual malice” or knowing disregard for the truth
Freedom of Speech, Press and Assembly
Unprotected Speech:• Obscenity: But what is considered obscene?
• Roth v. United States (1957): In order to be considered unprotected, obscene speech, the must be:
• “utterly without redeeming social importance”• “Whether to the average person… the dominant theme of the
material” appeals to an unhealthy interest in sex (“prurience”)
• Miller v. California (1971): Tries to make it easier for states to define obscenity by adding to Roth test:
• The work appealed to a “prurient interest in sex”• The work portrays sexual conduct “in a patently offensive
way”• The work “lacks serious literary, artistic, political, or scientific
value.”
Freedom of Speech, Press and Assembly
The Right to Assemble• What is the purpose?
• To allow citizens to communicate their ideas on public issues
• BUT, can conflict with public order, so reasonable limits (time, place and manner) can be placed on assembly
• Are there limitations on the message of the assembly? • NO! Terminiello v. City of Chicago (1949)• Smith v. Collin (1978)
The Right to Privacy: Is There a Right to Privacy in the Constitution?
• Definition: the right to a private personal life free from the intrusion of government
• Not explicitly stated in the Constitution, but implied through the penumbras (implied rights) of the Bill of Rights • Privacy is a transcendent, constitutional value, which
is fundamental to the American way of life and to other basic rights outlined in the Bill of Rights
• Supreme Court agrees that a right to privacy exists:• Griswold v. Connecticut (1965): CT law outlawing
access to contraception violated constitutional right to privacy of married couples to make decisions about their families
The Right to Privacy: The Abortion Debate; Issue that Proved Problematic during the Health Care Legislative Process
Roe Revisited: Planned Parenthood v. Casey (1992)
• The issue: Was the Pennsylvania Abortion Control Act of 1982 constitutional? • Law required that a woman seeking an abortion
meet several conditions
• Would Roe be overturned?• No… Justice O’Connor argued that stare
decisis (precedent of the Court) required the Court to not overturn Roe. • “A generation of women had come to depend on
the right to an abortion.” • The Court held that states cannot prohibit abortion
prior to viability (before the fetus could live independently outside of the mother’s womb).
Roe Revisited: Planned Parenthood v. Casey (1992)
• HOWEVER, the Court allowed certain restrictions on abortions• States can regulate abortions before viability as long
as the regulation does not place an “undue burden” (substantial obstacle) on the access to abortion.
• After fetal viability, however, states have increased power to restrict the availability of abortions to protect the health of the woman and the potential life of the fetus.
• Thus, states can pass some laws that regulate abortion, but these laws cannot place a “substantial obstacle in the path of a woman seeking an abortion.”
• But what is a “substantial obstacle?”
The Rights of Defendants and the Accused
• Much of the Bill of Rights (Amendments 4, 5, 6, 7, and 8) apply to people accused of crimes
• Like other civil liberties, defendants’ rights are not clearly defined in the BoR• Just how speedy is a “speedy” trial?• How “cruel and unusual” must a punishment be
to violate the 8th amendment?
• Courts continually rule on what action of the government is constitutional and what is not.
The Rights of Defendants and the Accused
The Rights of Defendants and the Accused
Searches and Seizures• Probable Cause: police must have
reason to believe that a person should be arrested
• Unreasonable searches and seizures (4th Amendment): evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment• Probable cause and a search warrant are
required in most cases to make a search and seizure constitutional
The Rights of Defendants and the Accused
Searches and Seizures• Exclusionary Rule: the rule that evidence,
no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained• The Court broadens the application of this rule
in Mapp v. Ohio (1961)• Selective incorporation: Because of Mapp, the
exclusionary rule applies to state governments
• What about the Patriot Act?
The Rights of Defendants and the Accused
Self-Incrimination• Definition: when an individual accused
of a crime is compelled to be a witness against himself or herself in court• Court has ruled that police must inform
suspects of these and other Fifth Amendment protections upon arrest.• Miranda v. Arizona (1966)
• However, a coerced confession does not necessarily mean a mistrial if it is a “harmless error”
The Rights of Defendants and the Accused
Miranda Warnings1. You have the right to remain silent. 2. Anything you say can and will be used
against you in a court of law. 3. You have the right to have an attorney
present before any questioning. 4. If you cannot afford an attorney, one will
be appointed to represent you before any questioning. Do you understand these rights?
The Rights of Defendants and the Accused
The Right to Counsel (Sixth Amendment)
• Always ensured in federal courts, but not state
• Gideon v. Wainwright (1963)• Court rules that the state must provide
lawyers in the case of a felony
The Rights of Defendants and the Accused
Cruel and Unusual Punishment (8th Amendment)
• Centered around the death penalty• Furman v. Georgia (1972): Court overturned
Georgia’s death penalty law because it punishment was arbitrary and random
• Gregg v. Georgia (1976)• The court has ruled that the death penalty is
not cruel and unusual. • It is “an extreme sanction, suitable to the
most extreme crimes.”
Civil Liberties Wrap-up
• Judicial interpretations shape the nature of civil liberties, and as these interpretations change over time, so do our rights
• To understand the civil liberties and freedoms we have (and how they have changed), we examined several key Supreme Court decisions
• One of the most common controversies addressed by the court:• Should the Bill of Rights apply to STATE
governments?
Civil Rights:The Struggle for Equality
The Struggle for Racial Equality
•The Era of Reconstruction and “Resegregation”•Jim Crow laws
•Relegated African Americans to separate facilities
•Key question: What would the Supreme Court do about segregation?
All persons 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.
The Fourteenth Amendment
Does treating people equally mean treating people the same?
Introduction: Defining Civil Rights
What Types of Discriminatory
Treatment Have Groups Faced?
• Racial Discrimination• Gender
Discrimination• Discrimination based
on age, disability, sexual orientation and other factors
Civil Rights• 14th Amendment issues• Action required of the
government to ensure equality
• Protects against discriminatory treatment
• Health Care a Fundamental Right?
What does equality mean?
• Conceptions of Equality• Equal opportunity = same chances?
OR• Equal results = same rewards?
• The Constitution and Inequality• Equality is not in the original Constitution.• First mention of equality in the 14th
Amendment: forbids states to deny “…equal protection of the laws”• But what does this mean?
The Struggle for Racial Equality
• Key Milestones During The Era of Slavery• Dred Scott v. Sandford (1857)
• Slaves had no rights.• Invalidated Missouri Compromise
• The Civil War• The Thirteenth Amendment
• Ratified after Union won the Civil War• Outlawed slavery
• Fourteenth Amendment• Fifteenth Amendment
The Struggle for Equality: Segregation, Equality and the Supreme Court
• Conflicting ideas of what it means to treat people equally has presented problems over the years for our Supreme Court
• When the SC must decide cases where people claim to have been treated "differently" in violation of the 14th, justices need to determine whether different treatment leads to inequality. Plessy v. Ferguson was their first attempt to do this.
The Struggle for Racial Equality:Plessy v. Ferguson (1896)
• The Supreme Court rules in favor of the state of Louisiana, declaring that the “Separate Car Act” was constitutional
• Establishes “Separate but equal” doctrine: Segregation of blacks and whites was constitutional as long as both have access to equal facilities
• The Court’s reasoning: The Constitution and the law are not responsible for promoting social equality, just equal treatment under the law. Do you agree?
The Struggle for Racial Equality:Plessy (Cont’d)
• We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. . . . The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane
The Struggle for Racial Equality:Brown v. Board of Education (1954)
• Chief Justice Earl Warren argues that “in the field of public education…separate but equal has no place.”
• “Separate educational facilities are inherently unequal.”
• The case overturns Plessy v. Ferguson and ends segregation in public schools
The Struggle for Racial Equality:Brown II (1955)• BUT, Brown brought up questions…
• How quickly should schools be desegregated?• What can the Supreme Court do to enforce its decisions?• This question was never addressed in the first Brown case!
• In 1955, the Supreme Court rules that a “prompt and reasonable start” to desegregation should take place “with all deliberate speed.”
• What does that mean? “With all deliberate speed”?????
• Desegregating Schools:• Busing of students became the solution for two kinds of
segregation:• de jure, “by law” segregation• de facto, “in reality” segregation
The Struggle for Racial Equality
(Furman Pic)
The Struggle for Racial Equality
Civil Rights Act of 1964• Made racial discrimination illegal in hotels,
restaurants, and other public accommodation• Forbade employment discrimination based on
race• Created Equal Employment Opportunity Commission
(EEOC) to monitor and enforce rules
• Strengthened voting right legislation• Provided for the withholding of federal funds for
discriminatory state and local programs• Authorized Department of Justice to initiate
lawsuits to desegregate public facilities and schools
The Struggle for Racial Equality
Impact of Civil Rights Act of 1964• Education
• Authorized the federal government to bring action against school districts who failed to comply with Brown
• Employment• Title VII of the act prohibited employment
discrimination based on race, gender, sex, age, and national origin
The Struggle for Racial Equality
The Right to Vote• Suffrage: the legal right to vote• Fifteenth Amendment: extended suffrage
to African Americans• Restricted Black Voting Rights During
Jim Crow• Poll Taxes: small taxes levied on the right
to vote• Literacy tests• White Primary: Only whites were allowed
to vote in the party primaries.
The Struggle for Racial Equality
• The Right to Vote• Twenty-fourth Amendment (1962):
eliminated poll taxes for federal elections• Voting Rights Act of 1965: helped end
formal and informal barriers to voting• Ended discriminatory voter registration tests• Authorized federal voting registrars to sign up
black voters
The Struggle for Racial Equality:Affirmative Action
• A policy designed to give special attention or compensatory treatment to members of some previously disadvantaged group. •Implemented in 1965 by Johnson’s
executive order
The Struggle for Racial Equality:Affirmative Action
In education• Regents of the University of CA v. Bakke
(1978)• First SC case to address constitutionality of AA,
brought up issue of reverse discrimination• Court rejected the university’s use of “quotas,”
which reserved a fixed number of seats for racial minorities
• HOWEVER, Court declared affirmative action programs are constitutional if they consider race as a "plus" in the application process.
The Struggle for Racial Equality:Affirmative Action
In education (cont’d)• Gratz v. Bollinger (2003)
• Gratz: Supreme Court struck down U Michigan’s undergraduate “point system” that awarded points to minority applicants because race became a deciding factor that did not treat applicants as individuals
The Struggle for Racial Equality:Affirmative Action
In education (cont’d)• Grutter v. Bollinger (2003)
• Grutter: BUT, allowed University of Michigan Law School to consider race as one of many factors because diversity is a compelling interest in higher education
• Significance: Court acknowledges that AA programs are acceptable and diversity is a legitimate goal in education, BUT race can not be the predominant factor (no quotas) AND applicants must be treated as individuals, not as members of a race
The Struggle for Equality:Affirmative Action
In employment
• United Steelworks v. Weber (1979)• Quotas to remedy past discrimination are
constitutional.
• Adarand Constructors v. Pena (1995)• To be constitutional, affirmative action must be
“narrowly tailored” to meet a “compelling governmental interest.”
• Did not ban affirmative action, but severely limited its reach
DISCUSSION
• Affirmative Action programs are necessary to safeguard equal opportunity in both education and employment for minorities
Today’s Key Questions
• What other groups have historically struggled for equal treatment under the law? Which groups continue to fight for their civil rights?• What types of discrimination have these
groups faced?• What governmental action has been taken
in addressing these civil rights issues?
The Struggle for Civil Rights: Other Groups
• Other minorities• Asian Americans, Arab Americans,
Hispanic Americans
• Women• Disabled• “Older” Americans• Gays and Lesbians
The Struggle for Gender Equality
• Early Women’s Rights: The Battle for the Vote• Nineteenth Amendment:
extended suffrage to women in 1920
• Fragile alliance of diverse women’s groups quickly disintegrated
• Widespread women’s rights activity would not emerge until 1960s
The Struggle for Gender Equality
• Equality Under the Law• National Organization for
Women (NOW) pushed for Equal Rights Amendment (ERA) from 1923 to 1980s• Passes in both houses of
Congress in 1972• States fail to ratify over the next
eight years (35 vote yes, 38 needed)
• Support for amendment has died out as Supreme Court has extended 14th Amendment to women
The Struggle for Gender Equality
• Equality in Education and Employment• Title VII of Civil Rights Act of 1964
• Prohibits gender discrimination by private and public employers
• Used to fight sexual harassment
• Title IX of 1972 Educational Amendments• Prevents educational institutions receiving
federal funds from discriminating against female students
• Often used to ensure equal access, resources and funding for sports teams
The Struggle for Gender Equality
• Other issues:• Women in the military• Equal pay• Sexual harassment
• Harris v. Forklift Systems (1993): Sexual harassment violates Civil Rights Act of 1964 when the workplace environment becomes “hostile or abusive”
• Faragher v. City of Boca Raton (1998): The employer is responsible for preventing and eliminating harassment at work
• Davis v. Monroe County Board of Education (1999): Schools can be held liable!
The Struggle for Equality: Other Minority Groups
Hispanic Americans• Largest and fasting growing minority
group• Controversial issues
• Should the government provide services to those that enter the country illegally?
• Bilingual education
The Struggle for Equality: Other Minority Groups
Asian Americans• Korematsu v. United
States (1944): Court declares Japanese internment camps constitutional due to a compelling state interest to ensure national security during a time of war
Controversial Civil Rights Issues Today
The Struggle for Equality: Disabled Americans
• What discrimination have Americans with disabilities faced?
• Government Intervention: Americans with Disabilities Act of 1990• Disabled person = someone with a physical or mental
impairment that limits one or more life activities• Guarantees access to public facilities, employment,
and communication services • Employers/schools must acquire or modify work
equipment, adjust schedules, or make facilities accessible
The Struggle for Equality: Disabled Americans
Controversy: Which ailments are considered true disabilities?• Since 1999, the Supreme Court has
redefined and limited the scope of the ADA. Workers are not “disabled” if their conditions can be corrected with medication or devices
The Struggle for Equality: Older Americans and Age Discrimination
• Older Americans have traditionally faced discrimination in workplace. Why?
• Government Intervention: Age Discrimination in Employment Act of 1967 (ADEA)• Prohibits discrimination in the workplace on the
basis of age unless is a bona fide requirement• Targets workers over 40• To win a lawsuit, the plaintiff must show that an
employer’s action (i.e. firing) was motivated by age
The Struggle for Equality: Gays and Lesbians
• What challenges have gays and lesbians faced in their struggle for equality?
• Government interventions• Bowers v. Hardwick (1986): Allowed states to ban
homosexual relations• Lawrence v. Texas (2003): Overturned Bowers
• Private homosexual acts are protected by the Constitution
• Gay marriage: Many state constitutions amended to prohibit practice, but a MA court decision allowed gay marriage
• Controversy: Do civil rights protections apply here?
Civil Rights Wrap-up
• Equality is essential to any democracy!• Racial minorities and women have struggled
for equality since the beginning of the republic.
• Our government has purportedly taken action in various ways (legislation, amendments, court rulings) in order to ensure equality
• Civil rights have expanded to new groups and issues of equality continue to be the subject of debate
DISCUSSION
The government should actively ensure that as many Americans as possible fall
under the protection of the ADA, including people who suffer from AIDS,
bad eyesight, and diabetes (for example)
DEBATE!
Civil rights and the Fourteenth Amendment’s guarantee of equal
protection under the law should not apply to gays and lesbians?
Right to Bear Arms
Right of Privacy
Right to Avoid Undo Search and Seizure
Right to Free Expression
http://www.roninpub.com/TeaParty-flags.gif
Right to Pursuit of Happiness?