1. Chapter 3 Civil Liberties & Civil Rights
The Bill of Rights: A Charter of Liberties
Nationalizing the Bill of Rights
Civil Liberties
Civil Rights

2. 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?

3. 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.
Table 5.3

4. Incorporating the Bill of Rights into the 14th Amendment
4-2

5. 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.

6. 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.
Figure 5.1

7. 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

8. Freedom of Assembly Parades, marches, protests, demonstrations.
Court allows requiring permits.
Assembling versus loitering.
KKK, Nazis, Crips and Bloods.

9. 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.”

10. The 3rd Amendment: Quartering Troops
During peacetime with owners consent
During war only by previously established laws.

11. Due Process of Law
4th Amendment - investigation and evidence collection
5th , 6th and 7th Amendments – trial phase
8th Amendment – punishment phase

12. 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)

13. 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.

14. 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.
Figure 5.2

15. 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.

16. 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.

17. The 9th Amendment
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

18. 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.

19. 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?

20. 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.

21. 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.

22. 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.

23. 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 State shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.”

24. 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.

25. 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

26. 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

27. 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.

28. 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.

29. 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.

30. Desegregation Phase One
De jure versus de facto segregation
“Massive resistance” across south
Court decisions without effect
Little Rock High School
President Eisenhower
Declares martial law
End funding to states resisting
Civil Rights Commission

31. Civil Rights Act – 1964 Phase 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

32. 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)

33. 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.

34. The Supreme Court and the Burden 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.

35. The Supreme Court and the Burden 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)

36. 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.