Reading/Lecture 2 Civil Liberties & Civil Rights

• Civil Liberties

• Civil Rights

Civil Liberties and Rights

• Often used interchangeably

• Liberties are freedoms the government cannot limit - speech, religion, petition.

• Rights are freedoms granted explicitly by the government– reflects the will of the people– may be imbedded in the constitution– citizenship, suffrage, equal treatment in

employment

Bill of Rights• U.S. Bill of Rights - 1st ten amendments to the

constitution– agreed to before ratification to ensure government was

explicitly limited.

• Texas Bill of Rights - First article in the constitution– stated first to reinforce its importance.

• “New Judicial Federalism” - state efforts to expand freedoms above the federal levels.

Application of Bill of Rights to All States

• 1897 Chicago R.R. v. Chicago - V• 1925 Gitlow v. New York - I Speech• 1931 Near v. Minnesota - I Press• 1934 Hamilton v. Univ of Cal Regents - I

Religion• 1939 Hague v. CIO - I Assembly• 1949 Wolf v. Colorado - IV Unnecessary search

and seizure• 1961 Mapp v. Ohio IV Warrantless search and

seizure• 1962 -1966 III, V, VI

Texas Civil Liberties• 34 Sections of Article 1 of Constitution• More affirmative than US Bill of Rights• Preferred fundamental freedom necessary

for democracy - speech, assembly, petition, religion

• Begins with equal protection• Followed by 1st amendment freedoms• In most cases more restrictive than the

Bill of Rights

Freedom of Speech and Press

• Foundation of democracy is deliberation

• These freedoms ensure open deliberation

• Texas upheld these freedoms before US Supreme Court forced states to apply these freedoms

Limiting Speech• Clear and present danger• Prior restraint - prevention of publication

– only when there is a real and immediate inescapable harm

– and there is no alternative which would violate free-speech less

– These criteria have never been met• Controlling law - a court decision that

determines how substantive cases should be decided.– Marsh v. Alabama– NWFC v. Barton Creek Mall– Right to Life Advocates v. Aaron Women’s Clinic

Right of Remonstrance

• Similar to right of petition and address of the government

• Petition can be a one way conversation• Remonstrance requires the governing body to

reply to the petition• Remonstrance requires two way

communication and therefore more deliberation

Freedom of Religion• More specific prohibitions against use of religion

tests in employment and discrimination• Employment Division v. Smith - Oregon 1990,

Court denies appeal.• Religious Freedom Restoration Act - 1993• City of Boerne v. Flores - 1997 using RFRA as

basis for case.• Court denies appeal claiming RFRA is

unconstitutional.• Texas Legislature enacts own version in 1999.

Due Course of Law• All procedural rules will be followed in case

considering rights of the accused.• “Due process” guaranteed by 14th amend• “Due course” guaranteed by Section 19 of

Article 1 of Texas Constitution– grants affirmative right of people without regard

to state government– includes disenfranchisement (life, liberty,

property, privileges and immunities)– open court provision for access to judicial system

guaranteed for redress of grievances and settling disputes

Search and Seizure

• 4th Amendment in Bill of Rights

• Section 9 of Article 1 of Texas Constitution

• Texas more restrictive in that warrant must be described “as near as can be”

Self Incrimination

• Pleading the 5th

• Pleading Section 10 - Article 1

• Texas Court of Criminal Appeals has more broadly interpreted violation of Miranda Rights– waiving Miranda rights without a lawyer

present is unconstitutional

Exclusionary Rule

• Excluding evidence collected illegally

• U.S. and Texas interpretation identical

• In Texas “other person” phrase is included which means evidence can be illegally collected by a private person as well as police.

Confrontation• Right to confront witnesses against the

accused

• Attempts to balance witness concerns and the rights of the accused

• Even in sexual abuse cases the video taping testimony of children is not considered constitutional.

Civil Rights

• Topical Scenario• Civil Rights

Topical Scenario

• Fictional Account of Sexual Harassment

• Supervisor pressures subordinate with sex for promotion

• Employee complains to management where it is addressed as just a problem of corporate culture.

• Civil suit for sexual harassment– Federal versus State suit– State suit offers better chance of success

Civil Rights

• Based on 14th Amendment to U.S. Constitution

• Rights granted by the government• Citizenship• Voting• Equal protection in education,

employment, housing

Citizenship• Not everyone qualifies• It is a prerequisite for other rights• Residency requirements one way to

determine citizenship• Full citizenship occurs at age 18• Citizenship and college costs - out of state

and foreign student tuition at state schools

Voting• Basic freedom in representative democracy• Universal suffrage has come slowly• Texas Constitution prohibits voter

registration• 13th, 14th, 15th Amendments• “Jim Crow” laws in southern states

– white only primaries– poll tax– literacy tests

U.S. Suffrage Enforcement• Court declares white primaries

unconstitutional in 1944.• 24th Amendment ends poll tax in national

elections (1964)– US v. Texas (1966 - Extended it to state elections)

• 26th Amendment lowers voting age to 18• Voting Rights Act of 1965 - prohibits states

from using anything as a prerequisite to voting

State Reaction Voting Dilution

• Voting Dilution - spreading minority vote to dilute and control representation.

- Gerrymandering

- Majority runoffs

- At-large Elections

- Straw candidates

- Restrictive registration

- State election dates

Equal Protection

• Similar to equal rights

• Granting equal opportunity in education and employment

• U.S. Supreme Court levels of scrutiny– strict scrutiny requires a compelling state

interest to limit equality– intermediate scrutiny requires state to

demonstrate more than a rational basis for limiting equality

– rational-basis test requires state to have a rational argument for treating people differently

Types of US Court Standards• Strict scrutiny applies to suspect

classification of race, ancestry, national origin, right to: vote, criminal appeal, interstate travel, procreation, parent-child relations, marriage, confrontation in court.

• Intermediate scrutiny applies to cases dealing with aliens, illegitimate children, and gender issues.

• All the rest treated under rational-basis

Texas Application of ERA

• Equal Rights Amendment - Section 3a of Article 1

• Prohibits gender based discrimination.

• Texas Court applies strict scrutiny rule.

• Additionally the state must show that no other nondiscriminatory action is possible.