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Government and Politics of the USA Week 3 TT:. Civil Liberties, Civil Rights, and Race. Dr Simon Boucher ~ [email protected] Required reading… McKay chapter 15: “Regulating Morality: Civil rights, liberties and the conscience issues”

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Dr simon boucher bouches tcd ie

Government and Politics of the USA

Week 3 TT:

Civil Liberties,

Civil Rights,

and Race

Dr Simon Boucher ~ [email protected]

Readings on race civil liberties rights

Required reading…

McKay chapter 15: “Regulating Morality: Civil rights, liberties and the conscience issues”

LGW chapter 4: “The Constitution and the Individual: The Bill of Rights, Civil Liberties and Civil Rights”

Singh chapter 24: “Race and Multiculturalism”

MHW chapter 10: “Affirmative Action- the Continuing Drama”

Optional reading…

Stephen Steinberg – “Race and Ethnicity in the United States: Issues and Debates” (2000)

Robert Post and Michael Rogin – “Race and Representation: Affirmative Action” (1998)

Additional resources…

Readings on Race, Civil Liberties / Rights

Hillary term essay feedback




Hillary term essay feedback


Distinguishing civil liberties and civil rights


About guaranteeingindividual freedom

Protection FROM government


About guaranteeing equality

Protection BY government

Distinguishing civil liberties and civil rights

In most countries,

“civil rights” and “civil liberties”

are used interchangeably – not in the US….

Background to the bill of rights

Following the Philadelphia Convention, anti-Federalists argued against the Constitution on the grounds that the strong national government was a threat to individual rights

This appealed to Americans’ concern for tyranny and the importance of individualism

Several states demanded amendment before they would ratify

Madison provided a set of rights to pre-empt another convention based on Virginia’s Declaration of Rights and state amendment recommendations

Background to the Bill of Rights

Content of the bill of rights

Freedom of speech

Freedom of the press

Freedom of religion

Right to bear arms

Freedom of assembly

Freedom of petition

Content of the Bill of Rights

The Bill of Rights protects citizens

against their government…





Defined a

“private sphere

of personal

liberty, free of



Limits to the bill of rights

Limits to the Bill of Rights

However the Bill of Rights

faced certain limitations

No right is absolute…

the only promise is that

the SC will give

“strict scrutiny” to any

action taken that limits

or abridge a right

Initially the protection

afforded via the

Bill of Rights

was limited, only

applying to the

federal government

Nationalising bill of rights

Initially US citizens were considered to have dual citizenship – confirmed in Barron v Baltimore (1833)

Therefore BoR only applied to federal government – rights not “nationalised”

After Civil War, 14th amendment imposed BoR on states, providing for “a single national citizenship” – civil liberties couldn’t vary dramatically from state to state

But SC ignored the 14th for over 100 years – maintaining the “Barron v Baltimore” status quo

Nationalising Bill of Rights


Is the Bill of Rights equally applicable

to federal and state government?

Nationalising bill of rights1

Over time individual rights were gradually “incorporated” under the 14th amendment - nationalising their effect

1960s – “the 2nd Constitutional Revolution” – in a series of cases the newly liberal SC actively applied the 14th amendment to remaining rights, incorporating them into the Constitution,

Nationalising Bill of Rights


Is the Bill of Rights equally applicable

to federal and state government?

Civil liberties today

History indicates US civil liberties are NOT carved in stone. They are fragile, and subject to constant judicial interpretation

Individual liberties endure intense scrutiny – e.g. the right to privacy (abortion)

Civil liberties need to be vigilantly safeguarded, especially at times of war

Remember: US courts are political institutions, and judges are politicians… Just as a liberal SC nationalised the BoR, a conservative one may denationalise certain rights…

Civil liberties today

The Bill of Rights is now fully “nationalised”. However…

The patriot act

Passed (opportunistically?) after 9/11

Expanded the authority of law enforcement agencies for the purpose of fighting terrorism

Widely criticized for weakening protections of civil liberties, such as…

Authorization of indefinite detentions of immigrants

“Sneak and peek” searches without permission or knowledge

Expanded powers for searching telephone, email and financial records without a court order

The Act has had several legal challenges, and Federal courts have ruled several provisions unconstitutional

The Act was renewed by the Republican Congress without major changes in March 06

The Patriot Act

The candidates and the patriot act

Hillary: voted for the Patriot Act in 2001 and to re-authorise it in 2006, but has criticised many of its measures

Obama: wasn’t in the Senate in 2001; worked to change parts of the Law but also voted to re-authorise it

McCain: voted for the Patriot Act in 2001, to expand it in 2005, and to re-authorise it in 2006

The candidates and the Patriot Act

Dr simon boucher bouches tcd ie

Government and Politics of the USA

Week 3 TT:

Race and

Civil Rights

Dr Simon Boucher ~ [email protected]

Dr simon boucher bouches tcd ie




Early history of the race issue

African Americans - the only ethnic group to come to America involuntarily

Traders brought West African slaves due to labour shortages amongst the colonists

Slavery controversial from the beginning – a major point of contention during the Constitutional Convention – almost outlawed

“Great Compromise” – Congress could not prohibit the importation of slaves before 1808. Slaves worth 3/5th of a person for representation purposes

Early history of the race issue

Dredd scott

The slavery issue remained controversial between “slave” and “free” states up till 1860s

Dredd Scott v Sandford (1857) set scene for civil war…

Established that slaves were property

Established that no black could be a US citizen, even if they were born and lived in a non-slave state

Following the Civil War (1861-65) Constitutional amendments overturned Dredd Scott

13th (1865) abolished slavery

14th (1868) established birthright citizenship

15th (1870) – prohibited states from denying citizens the right to vote because of their race or previous slavery

Dredd Scott

The 14 th amendment

Civil rights became part of the constitution with the adoption of the 14th amendment in 1868

Civil rights are obligations imposed on the government by the equal protection of the laws clauseof the 14th amendment, to take positive action to protect citizens from the illegal actions of other citizens or government agencies

The 14th amendment guarantees equal citizenship and protects citizens from discrimination

The 14th Amendment

“No state shall make or enforce any law

which shall… Deny to any person within its jurisdiction

the equal protection of the laws”

The establishment resists

Despite the clarity of the 14th amendment, the SC was not willing to enforce it

The SC proceeded to declare the 1875 Civil Rights Act unconstitutional

In the infamous Plessy v Ferguson (1896) the SC went further, upholding a Louisiana statute that required segregation of the races on public transport. Whites and blacks were considered “separate but equal”

Southern states evolved into dual societies via the imposition of “Jim Crow Laws”

The establishment resists…

Jim crow laws

State and local laws enacted in the Southern states and enforced between 1876 and 1965

Excluded blacks from full social participation – mandated "separate but equal" status.

In reality, this led to treatment and facilities that were almost always inferior to those provided for whites

Typically required that public schools, public places and public transport have separate buildings, toilets, and restaurants for whites and blacks

Jim Crow was repealed by via “Brown v Board” in 1954 and the Civil Rights Acts of the 1960s

“Jim Crow Laws”

Jim crow laws1


"All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races."


"All persons licensed to conduct a restaurant, shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room or serve the two races anywhere under the same license."


"Any person...who shall be guilty of printing, publishing or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and Negroes, shall be guilty of a misdemeanor and subject to fine"

“Jim Crow Laws”

Turning of the tide

World War 2 helped reinforce the perception

among blacks that conditions in the South

were unacceptable

Mobilised many African American males

Induced mass migration of blacks to the war factories of the North

The SC became stricter about the “equal”

facilities which states had to provide under

the “separate but equal” rule - but the rule’s underlying logic

wasn’t queried

NAACP – by 1940s was actively supporting lawsuits aimed at

discriminatory practices

Turning of the Tide

Brown v board 1954

Breakthrough SC case

Involved 8-year-old girl required to attend an all-black school 5 miles away rather than an all-white school closer to home

Invoking the equal protection clause of the 14th Amendment – SC decided that separate facilities in education were “inherently unequal”

First application of 14th amendment since 1868 – the end of “separate but equal”

In a related decision in 1955 the SC ordered Southern Schools to “desegregate with all deliberate speed”

Provoked huge protests in the South, clear efforts made to obstruct implementing the law

Brown v Board (1954)

Brown v board 19541

Altered the US Constitutional

framework in 2 respects:

States no longer have the power to use race as a basis of discrimination in law

The Federal government had the power (and eventually the obligation) to intervene with strict regulatory policies against the discriminatory actions of state or local government

Brown v Board (1954)

Brown v board

Brown v Board

Ongoing resistance

Initially, most states refused to cooperate until sued, and developed many ingenious schemes to delay obedience

In 1955 the SC ordered all local authorities to “make a prompt and reasonable start” and district courts to “proceed with all deliberative speed” towards de-segregation; still for 10 years progress was agonisingly slow

It became obvious that the goal of “equal protection” required positive, or “affirmative” action and that legislation was required

Ongoing resistance

Freedom is not enough

you do not take somebody hobbled by chains for years, bring him to a start line, and then say ‘you are free to compete with others’

“Freedom is not enough”

Freedom is not enough1


1964 Civil Rights Act- power of the purse –denied federal monies to organisations, individuals or programmes practicing discrimination

1965 Voting Rights Act– made illegal all laws denying blacks equal access to the ballot

Affirmative Action

LBJ argued that outlawing discrimination wouldn’t result in equal opportunities – proposed the “Philadelphia Plan” – the first effort of “affirmative action”

LBJ left office before it could be implemented

“Freedom is not enough”

Affirmative action


Positive discrimination in which race is taken into account, but for compensatory action, rather than mistreatment

Compensatory action to favour members of the disadvantaged group who themselves may not have suffered discrimination

Quotas may be, but are not necessarily, involved in AA policies

In 1968 Nixon unexpectedly implemented and expanded LBJ’s Philadelphia Plan. However his motives were questionable, and he soon proceeded to attack AA quotas

AA extended in the 1970s, dividing civil rights activists – was “reverse discrimination” just?

Affirmative action

“Compensatory action to overcome the consequences

of past discrimination”

Arguments for affirmative action

Many believe that society continues to routinely positively discriminate in favour of white (males) –WASPs continue to economically and politically dominate America

This course is maintained by denying minorities the chance to maximise their potential - particularly in schools

They argue the goal of AA is not to privilege minorities over the majority nor is it simply reverse racism, but to create a colour-blind society - which in the short term requires programmes which temporarily privilege minorities

…AA simply “helps minorities find their voice”

Arguments for affirmative action

Arguments against affirmative action

How can AA create a colour-blind society when it classifies people by the colour of their skin?

AA heightens peoples’ awareness of their differences, actually aggravating racism

AA is incompatible with America’s traditional values of capitalism, freedom and choice – businesses should be allowed hire and fire purely on the basis of merit

For every place held for a minority, an equally or better qualified person is overlooked

People who benefit from AA are usually already privileged members of the minority groups –not the truly under-privileged. Ironically these individuals are usually considerably more privileged that poor whites

Arguments against affirmative action

Affirmative action is there a solution

Since the mid 1970s the SC has progressively weakened AA in a series of decisions, particularly stating that “any rigid numerical quota” was suspect

Clinton - “mend it, don’t end it” - all AA policies were reviewed; most were found fair, but had to serve a “compelling state interest”

A majority of blacks and whites favour programmes that help blacks succeed, but both groups oppose quotas

Key to future AA - ensure those who benefit are truly, demonstrably oppressed…

How does one judge between the oppressed and non-oppressed?

How does one measure different levels of oppression?

Affirmative action – is there a solution?

Can class and race be combined as an AA tool?

Other controversial race related issues


School curriculum


Other controversial race-related issues

A closing thought on race

In 1960, 85% of Americans were white…

In 2000, 69% of Americans were white…

By 2050 whites will be a minority

A closing thought on race…

“The browning of America”

Universalising civil rights

Since the 1960s the success of the African American civil rights movement has encouraged other groups to fight for their civil rights

Under Title 7 of the 1964 Civil Rights Act, any group can try and convert their grievances into a question of rights – by establishing that their membership in a group is an unreasonable basis for discrimination

“Universalisation” has become the new frontier of the civil rights struggle; the 1964 Act has been used as a basis for defending civil rights based on gender, disability, sexual orientation, age and religion

Ironically the conservative Burger Court established gender as a major civil rights issue by applying the 1964 Act to women

“Universalising” civil rights

Universalising civil rights reflects the importance

of “equality of opportunity” in US society

Dr simon boucher bouches tcd ie

Government and Politics of the USA

Week 3 TT:


and 2008

Dr Simon Boucher ~ [email protected]

Race and the 2008 election

The voting demographics

Bill Clinton and race

Geraldine Ferraro and race

Reverend Jeremiah Wright and race

Obama – the Philadelphia speech

Race and the 2008 election

2008 voting demographics

Obama routinely wins 80% + of black voters

Hillary dominates amongst Hispanic and Asian voters (65-70% in many states)

The white vote has split from state to state and according to gender

2008 voting demographics

Race is clearly a major factor

in deciding this election

Bill clinton and race in 2008

Bill was originally considered “the first black President”

Unusually for a former President, has occasionally been used as an attack dog by Hillary’s campaign

During the SC Primary (and after), was considered to have made a series of implicitly racist statements

Reaction to Bill and outcome for Hillary very negative

Bill Clinton and race in 2008

Geraldine ferraro and race in 2008

1988 Democratic VP nominee

Member of Hillary’s Finance Committee

March 2008 – claimed “if Obama was a white man, he wouldn’t be in this position”

Comment criticised by many, though some defended her; Ferraro remained defiant but resigned her campaign role

Geraldine Ferraro and race in 2008

The jeremiah wright controversy

Obama’s former family pastor. Married him, baptised his children – an “uncle figure”

Now retired from ministry

In March 2008 a variety of incendiary videos appeared on TV and the internet, including “anti-American” and “anti-white” racist statements

The Jeremiah Wright controversy

Obama s philadelphia speech

Obama had long avoided the issue of race, attempting to be a “colour-blind” candidate

He initially avoided the Wright controversy – but it became a major threat to his campaign

Delivered “Landmark” high-risk More Perfect Union speech in Philadelphia

Condemned Wright’s statements, but explored reasons for such extreme rhetoric in historical context

Declared he would neither disown Wright nor his racist grandmother

Speech considered a masterpiece, so far polls appear steady

Obama’s Philadelphia speech

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