Lesson 6.2: Civil Rights/Civil Liberties & Selective Incorporation

AP U. S. Government

Civil Rights vs. Civil Liberties

"Civil Rights" vs. "Civil Liberties”

• What’s the difference between"civil rights" and "civil liberties“?

• “Civil rights" - the basic right to be free from unequal treatment based on certain protected characteristics (race, gender, disability, etc.) in settings such as employment and housing.

• "Civil liberties" - basic rights and freedoms that are guaranteed --either explicitly identified in the Bill of Rights and the Constitution, or interpreted through the years by courts and lawmakers.

"Civil Rights" vs. "Civil Liberties”

Civil liberties include:

• Freedom of speech

• The right to privacy

• The right to be free from unreasonable searches of your home

• The right to a fair court trial

• The right to marry

• The right to vote

"Civil Rights" vs. "Civil Liberties”

• One way to consider the difference between "civil rights" and "civil liberties" is to look at

1. what right is affected

• 2. whose right is affected.

• For example, as an employee, you do not have the legal right to a promotion, mainly because getting a promotion is not a guaranteed "civil liberty."

• But, as a female employee you do have the legal right to be free from discrimination in being considered for that promotion -- you cannot legally be denied the promotion based on your gender (or race, or disability, etc.).

• By choosing not to promote a female worker solely because of the employee's gender, the employer has committed a civil rights violation and has engaged in unlawful employment discrimination based on sex or gender.

Civil Rights vs. Civil Liberties

CIVIL LIBERTIES are

protections of

citizens

from unwarranted

government action.

CIVIL RIGHTS

describe

government’s

responsibility to

protect

citizens.

The Bill of Rights’ emphasis on limiting the

powers of the national government makes it

arguably more a “bill of liberties.”

Civil Liberties - Freedom vs. Order

• How to balance the competing interests of the people and the government

• Civil liberties conflicts usually involve:• An individual (or group of individuals) seeking to exercise certain freedoms

• And

• The government seeking to keep order and preserve the rights of others

• OR• Two competing liberties

Civil Rights - Freedom vs. Equality

• Are private businesses free to hire and promote whomever they want?

• Are universities free to admit whomever they want?

• How do we balance the competing need for freedom with the need for equality?

The Roots of Civil Liberties

• Federalist vs. Anti-federalist debate• How strong should the federal government be?

• Is there a need to specifically limit the powers of the federal government?

• Most Framers originally opposed the Bill of Rights on the grounds that it was superfluous because the Constitution enumerated what the US government could and could not do and states had their own Bills of Right

• Bill of Rights compromise• Anti-federalists would only ratify the Constitution if a Bill of Rights was

added

• James Madison primary author of Bill of Rights

US Bill of Rights

• I – Speech, press, assembly, petition, religion

• II – Bear arms

• III – Quartering of troops

• IV – Search and Seizures

• V – Due process and rights of the accused

• VI – defendant’s rights

• VII – Right to a jury trial in civil cases

• VIII – No excessive bail, no cruel or unusual punishment

• IX – List of specific rights is not exclusive

• X – Reserved powers clause

AMENDMENT V

*INDICTMENT BY A GRAND JURY…enough

evidence to be charged.

*DOUBLE JEOPARDY…can’t be tried twice for a crime.

*SELF-INCRIMINATION…can’t be forced to testify against

yourself “taking the 5th”.

*DUE PROCESS…government must go through the proper steps.

AMENDMENT VI

*GUARANTEED A FAIR, FAST, & PUBLIC TRIAL

*RIGHT TO BE PRESENT IN COURT

*RIGHT TO HAVE A LAWYER

AMENDMENT VII

RIGHT TO A TRIAL BY JURY

IN CIVIL CASES + $20*

*Changed by Congress

to be $75,000

AMENDMENT VIII

*PROTECTION AGAINST EXCESSIVE BAIL

$ $ $ $ $ $ $

*PROTECTION AGAINST CRUEL & UNUSUAL PUNISHMENT

Bill of Rights – Original Interpretation

• The Bill of Rights, when ratified in 1791, applied only to the powers of the national government and did not apply to the states.

• The first five words of the First Amendment:“Congress shall make no law…”

• Barron vs. Baltimore (1833)• Supreme Court ruled that Bill of Rights applied only to US government

• The Court’s decision in Barron vs. Baltimore remained unchallenged until after the 14th Amendment was added to the Constitution in 1868

A Double Standard

• Until the Bill of Rights was incorporated to apply to the states, the United States had two drastically different systems of criminal justice

• Federal prosecutors were required to use search warrants, the exclusionary rule, and trial by jury, but state prosecutors were not required to do so

• The Supreme Court eventually extended most criminal procedure rights to the states to avoid giving state law enforcement officials incentive to violate the U.S. Constitution

Selective Incorporation

Applying the Bill of Rights to State and Local Government

Selective Incorporation

So how did we come to Selective Incorporation? Did the word “liberty” in the due process clause mean the entire Bill of Rights was to be used...Total Incorporation.

Total Incorporation does have some difficulties. Ex: meant imposing on state court systems the requirement to have a trial by jury in civil suits where the amount exceeds $20?

Plus, what about the 10th Amendment...powers not delegated to the US by the Constitution, nor prohibited by the States, are reserved for the States respectively, or to the people

• This is how we have come to SELECTIVE INCORPORATION –case by case basis.

Selective Incorporation

• On a case-by-case basis, the Supreme Court began recognizing a role for the national government to protect citizens from state governments.

• Selective incorporation defined: the process by which different protections in the Bill of rights were incorporated into the 14th

Amendment, thus guaranteeing citizens’ protection from state as well as national governments

14th Amendment - 1868

Section 1. All persons born or naturalized in the U.S. and subject to the jurisdiction thereof, are citizens of the U.S. 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 the law; nor deny to any person within its jurisdiction the equal protection on the laws.

Three Clauses:

1. Privilege and Immunities Clause

2. Due Process Clause*

3. Equal Protection Clause*

*significantly impacted future SC decisions

Incorporation

• When the Supreme Court uses the Fourteenth Amendment’s Privileges and Immunities Clause or Due Process Clause or Equal Protection Clause to rule that a state law or policy has violated a Bill of Rights protection, it is said to have “incorporated” that protection.

Gitlow v. New York (1925)

• Benjamin Gitlow wrote a pamphlet entitled “The Revolutionary Age” urging industrial workers to strike and join a revolution to overthrow organized government.

• Gitlow was arrested and convicted for violating a New York state law that made it a crime to advocate the overthrow of the government by force or violence

• Gitlow argued that the New York law violated his right to freedom of speech and of the press

Gitlow v. New York (1925)• 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)

• The Supreme Court voted to uphold Gitlow’s conviction, but ruled that “freedom of speech and of the press…are among the fundamental and personal rights and liberties protected by the Due Process Clause of the 14th

Amendment”

Selective Incorporation

• The ratification of the 14th Amendment created a formal framework for extending certain aspects of the Bill of Rights to apply to the states

• The incorporation doctrine becomes the justification for using the 14th Amendment to apply the Bill of Rights to states

• Gitlow vs. New York was the first incorporation case

• Selective incorporation - The Supreme Court decides, on a case-by-case basis, which provisions of the Bill of Rights it wishes to apply to the states.

Selective Incorporation

Important understandings

• Incorporation did not happen all at once

• It happened one provision and one clause of the Bill of Rights at a time

• Several of the amendments have NOT been incorporated

Table 5.1

P. 157The Selective Incorporation of the Bill of Rights

Amendment Right Date Case Incorporated

I Speech

Press

Assembly

Religion

1925

1931

1937

1940

Gitlow v. New York

Near v. Minnesota

DeJonge v. Oregon

Cantwell v. Connecticut

II Bear arms 2008 DC v. Heller

III Quartering of troops NOT INCORPORATED

IV No reasonable search or

seizure

Exclusionary rule

1949

1961

Wolf v. Colorado

Mapp v. Ohio

V Just compensation

Self-incrimination

Double jeopardy

Grand jury indictment

1897

1964

1969

Chicago, B&Q RR Co. v. Chicago

Malloy v. Hogan

Benton v. Maryland*

NOT INCORPORATED†

* Overruled Palko v. Connecticut; †Trend in state criminal cases is away from grand juries

juries

In Conclusion

Selective incorporation has profoundly altered American federalism. Before the process started, the federal courts had little to say about the day-to-day operation of state and local gov’ts.

With the incorporation of the freedom of speech and the press came federal guidelines for states and localities concerning expression and its type.

The federal gov’t tells states what sort of anti-obscenity and anti-pornography laws they may pass and enforce, and what sort of marches, parades and rallies they must allow in public places.

Whether the Chicago suburb of Skokie must allow Nazis to march through its Jewish

neighborhoods- or a city in Florida may prevent the sale of albums by 2 Live Crew are now

questions involving the SC’s interpretation to the First Amendment

In Conclusion

• The incorporation of the 4th, 5th, and 6th Amendments has changed the way state and local authorities enforce criminal law. Law officials must pay particular attention to the way they interrogate suspects.