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Unit 5: Civil Rights and Liberties

Unit 5: Civil Rights and Liberties. I. Civil liberties A. Protections AGAINST government B. Guarantee the safety of people, opinions, and property from acts of government (i.e. freedom of speech and religion) II. Civil rights A. Positive acts of government

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Unit 5: Civil Rights and Liberties

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  1. Unit 5: Civil Rights and Liberties

  2. I. Civil liberties A. Protections AGAINST government B. Guarantee the safety of people, opinions, and property from acts of government (i.e. freedom of speech and religion) II. Civil rights A. Positive acts of government B. Seek to make constitutional guarantees a reality for all people (i.e. prohibiting discrimination

  3. III. The First Civil Liberties: The Bill of Rights A. Bill of Rights addition defeated unanimously at the federal convention 1. Federalists argued that a bill of right was unnecessary. a. Already included by states b. Foolhardy to list things that the national government had NO power to do c. Some Federalists supported the idea; Jefferson for example

  4. B. The first ten amendments to the Constitution contain numerous specific guarantees 1. Free speech, press and religion 2. Ninth Amendment a. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” b. Tenth Amendment

  5. IV. 14th Amendment A. Due process clause 1. Over the years this clause has been construed to guarantee to individuals a variety of rights 2. The legal processes the government can use against a person in a criminal or civil procedure are limited by guaranteed constitutional rights a. No jail without a court hearing b. Right to counsel c. Right against self incrimination (silence)

  6. 3. Substantive due process a. Judicial interpretation of the Fifth and Fourteenth Amendments’ due process clause that protects citizens from arbitrary or unjust laws b. The Court has identified the following rights as being so fundamental that the gov’t must have “a compelling interest” to pass laws that interfere with these rights (1) the right to marry and have children (2) the right to purchase and use birth control (3) the right to custody of one’s children and to rear them as one sees fit (4) the right of mentally competent adults to refuse medical treatment

  7. (5) the right to free speech (6) the right to interstate travel (7) the right of legal voters to vote (8) the right to associate (9) the right to religious freedom 4. Procedural due process a. the government must follow known and established practices before they regulate or take life, liberty, or property. (1) Property refers to anything an individual can own either tangible or intangible b. Due process guarantees include the requirement of notice, the opportunity for a fair hearing, the opportunity to present evidence, and the opportunity to appeal.

  8. B. Incorporation—process by which the due process clause of the 14th amendment is used to decide whether various guarantees in the Bill of Rights limits the states as well as the national government 1. Initially, the Bill of Rights intended to limit powers of the national government only! 2. This was confirmed by Barron v. Baltimore (1833) a. Court ruled that the national Bill of Rights limited only the actions of the U.S. government and not those of the states. b. But decision suggested the possibility that some or all of the protections might be interpreted to prevent state infringement of those rights. 3. Ruling in Gitlow v. NY began the incorporation process

  9. C. Selective Incorporation 1. A judicial doctrine whereby most but not all of the protections found in the Bill of Rights are made applicable to the states via the due process clause of the Fourteenth Amendment. a. This means that the Court has examined rights on a case by case basis rather than holding that all of the Bill of Rights are limitations on the states. 2. The following rights have still NOT BEEN INCORPORATED ONTO THE STATES: a. The 5th amendment right to an indictment by a grand jury b. The 7th amendment right to a jury trial in a civil lawsuit c. The implicit requirement in the 6th amendment that a jury must have 12 members and must reach a unanimous verdict d. The 8th amendment protection from excessive fines and bail

  10. D. Equal Protection Clause 1. Like the due process clause, it is a constitutional guarantee of fair treatment for all persons regardless of sex, race, national origin, religion, or political views 2. Ensures equality of opportunity a. Laws must not unfairly disadvantage anyone in his/her opportunity to seek a variety of social goods, such as education, employment housing, and political rights 3. Sometimes classifications of people are necessary a. For example, those 16 and older qualify for a driver's license, those under 16 do not. Does a classification that results in different treatment violate the equal protection clause? 4. The Supreme Court uses 3 levels of analysis to answer the question: a. Strict Scrutiny (1) generally laws that create classifications based on race, national origin, religion, or status as a legal alien and laws that dilute or impede the right to vote are presumed to violate the equal protection clause (2) the gov’t must show a compelling interest for the law, i.e. Korematsu v. U.S.

  11. b. Intermediate Scrutiny (1) classifications based on gender and illegitimacy (birth to an unmarried mother) (2) the gov’t must prove that the laws are “substantially related to an important gov’t purpose” i.e. excluding women from the draft c. Rational Basis (1) all other classifications such as age, wealth, and disability (2) these classifications are presumed to be constitutional. (3) the person or group challenging must prove that the law is not rational or reasonable. This is rare.

  12. 5. The 14th amendment’s equal protection clause only applies to the states. Individuals and groups who believe the national gov’t has deprived them of equal protection must challenge their treatment under the 5th amendment. 6. Claims of equal protection raise difficult issues: a. should preferences be given to historically disadvantaged groups? b. is intermediate scrutiny the appropriate level for analyzing classifications based on gender? c. whether groups such as the mentally handicapped, children of illegal aliens, and homosexuals should be given minority status for equal protection because of the prejudices against them.

  13. VI. First Amendment Freedoms A. Religion 1. Guaranteed by the establishment clause a. Government cannot promote any religion (1) Engel v. Vitale (1962) (2) Lemon v. Kurtzman (1971) -The Lemon Test • iftheaidhasaclearnonreligiouspurpose; • if its main effect is to neither advance nor inhibit religion; • if it avoids excessive government entanglement with religion.

  14. 2. Free exercise clause a. Government cannot prohibit any kind of religious belief but can prohibit some kinds of "illegal" behavior b. One man's culture can be another's crime (1) human sacrifice (2) polygamy—Reynolds v. U.S. (3) drug use—Oregon v. Smith (4) alcohol c. Government must maintain neutrality in disputes between religions and between religion and non­religion

  15. B. Freedom of the Press 1. Volatile area of constitutional interpretation a. Prior Restraint (1) generally held to be in violation of the 1st amendment -NY Times v. U.S. 2. A. Sunshine laws a. Government meetings must be accessible to the press and public 3. Freedom of Information Act a. Federal law requiring government to release non-secret information if requested

  16. 4. Shield laws -- Branzburg v Hayes (1972) a. Laws protecting a news person's source of information b. The Supreme Court does NOT recognize such a right c. The chilling effect -- the press makes such a claim when the" Court weakens an absolute right of the press to exercise their press freedom 5. Libel -- a written lie -NY Times v Sullivan (1964) a. the test for public and private persons (1)Public persons inject themselves into the public arena

  17. (2) Private person do not b. Malice aforethought must be proven in cases involving public persons (1) Malice -- intended to do harm & callous disregard for checking the truth of the statement c. Private persons (1) no malice has to be proven -- just a false statement -- must prove financial loss to get compensation C. Freedom of Speech 1. Belief a. Anything you want

  18. 2. Speech-action a. Speak but don't act illegally 3. Speech-non speech a. Silence is as protected as speech 4. Obscenity a. Not protected; it has to be art 5. Slander a. If it's a lie don't say it 6. Sedition a. Speech against the government 7. Fighting words (incitement) not protected 8. Advocacy of an incitement to an illegal act; not protected

  19. 9. Clear and present danger Test a. Test articulated by the Supreme Court in Schenck v. U.S. (1919) to draw the line between protected and unprotected speech. (1) The Court looks to see “whether the words used” could “create a clear and present danger that they will bring about substantive evils” that Congress seeks “to prevent.” 10. Direct Incitement Test a. A test articulated by the Supreme Court in Brandenburg v. Ohio (1969) that holds that advocacy of illegal action is protected by the First Amendment unless imminent lawless action is intended and likely to occur. 11. Preferred position doctrine for free speech a. Speech is always preferred and almost never punishable

  20. 12. Symbolic Speech a. Symbols, signs, and other methods of expression generally also considered to be protected by the First Amendment b. Tinker v Des Moines Independent County School District (1969) (1)Symbolic expression that does not disrupt the school curriculum cannot be censored c. Texas v Johnson (1984) (1) Texas flag burning statute is unconstitutional

  21. D. Freedom of Expression 1. Obscenity a. Miller v Ca.--1973--3 part Miller test for obscenity (1)panders to a prurient interest (2) patently offensive sexual content (3) taken as a whole the work has no serious redeeming social or artistic value

  22. VII. The Rights of the Accused A. Due process rights 1. Procedural guarantees provided by the Fourth, Fifth, Sixth and Eighth Amendments for those accused of crimes. 2. Warren Court made several provisions of the Bill of Rights dealing with the liberties of criminal defendants (those charged but not yet tried) applicable to the states through the Fourteenth Amendment

  23. B. 4th Amendment 1. Over the years, the Court has interpreted the Fourth Amendment to allow the police to search: a. The person arrested b. Things in plain view of the accused person c. Places or things that the arrested person could also touch or reach or are otherwise in the arrestee’s immediate control. 2. Court has ruled that police must knock and announce their presence before entering a home or apartment to execute a search. 3. 2001 ruling on thermal imaging drug evidence (without a warrant) was violation of Fourth Amendment. 4. Drug testing difficult search and seizure issue.

  24. C. 5th Amendment 1. Imposes a number of restrictions on the federal government with respect to the rights of persons suspected of committing a crime. 2. Miranda v Arizona (1966) a. Notification of the rights of silence & counsel 3. Does not apply to physical evidence a. blood, saliva, fingerprints, DNA tests b. 5th only protects testimonial evidence not physical exemplars

  25. 4. Provides for indictment by a grand jury and protection against self-incrimination. 5. Prevents the national government from denying a person life, liberty, or property without the due process of law. 6. It also prevents the national government from taking property without fair compensation (eminent domain).

  26. D. Exclusionary Rule and the 4th and 5th Amendment 1. The exclusionary rule (the fruit of the poisoned tree doctrine) (1) illegally obtained evidence and all evidence derived from illegal evidence is prohibited from trials (2) Mapp v. Ohio E. 6th Amendment 1. Sets out the basic requirements of procedural due process for federal courts to follow in criminal trials.

  27. 2. These include speedy and public trials, impartial juries, trials in the state where the crime was committed, notice of the charges, the right to confront and obtain favorable witnesses, and the right to counsel. a. Gideon v. Wainwright (1936)

  28. F. 7th Amendment 1. Right to a jury trial in some civil cases (not incorporated) G. Eighth Amendment and Cruel and Unusual Punishment 1. Part of the Bill of Rights that states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” a. Furman v. Georgia (1972) (1) Court ended capital punishment (2) Imposed in an arbitrary/ discriminatory manner

  29. VIII. Right to Privacy A. 1st Amendment (Privacy of Beliefs) B. 3rd Amendment (Privacy of the Home) C. 4th Amendment (Privacy of the Person and Possessions D. 9th Amendment (General protection for privacy?) E. 14th Amendment (Liberty Clause)

  30. F. Birth Control 1. Griswold v. Connecticut (1965) G. Abortion 1. Roe v. Wade (1973) 2. Court found a woman’s right to an abortion was protected by the right to privacy that could be implied from specific guarantees found in the Bill of Rights applied to the states through the Fourteenth Amendment. 3. Webster v. Reproductive Health Services (1989) 4. Planned Parenthood of S.E. Pennsylvania v. Casey (1992) H. Homosexuality 1. Lawrence v. Texas (2003) a. State sodomy laws found unconstitutional

  31. 2. K. The Defense of Marriage Act (1996) a. Defines marriage as between persons of opposite sex b. States are not required to recognize same sex marriages performed in other states IX. The Right to Die A. 1990 Court ruled in a 5-4 decision that parents could not withdraw a feeding tube from their comatose daughter after her doctors testified that she could live for many more years if the tube remained in place. B. Rehnquist rejected any attempts to expand the right to privacy in to this area.

  32. C. Court did note that individuals could terminate medical treatment if they were able to express, or had done so in writing via a living will, their desire to have medical treatment terminated in the event they became incompetent. D. 1997 Court ruled unanimously that terminally ill persons do NOT have a constitutional right to physician assisted suicide. 1. Oregon voters approved a right to die law in 2001.

  33. Civil Rights Act of 1964 – Legislative Journey Civil Rights Act of 1964 – Outlawed discrimination in the United States against African Americans (including racial segregation). What else did the law do?

  34. President Kennedy called for the law in a speech Legislation “giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments," as well as "greater protection for the right to vote."

  35. House Action Democrats in House draft legislation modeled after Kennedy’s proposal – outlawing racial segregation in public places and allowing citizens to sue for discrimination. Members of Congress who support the bill cite Congress’s power to regulate interstate commerce (the Commerce Clause) of the Constitution as their authority

  36. House Committee Actions • Referred to House Judiciary Committee Chaired by Democrat Henry Cellar (D-NY) • Hearings are held and the bill is strengthened, giving greater protection to black voters and allowing lawsuits based on discrimination. • “Poison Pill” is added by opponents to the bill. This so called “poison pill” makes all provisions of the Civil Rights Act applicable to women.

  37. Bill Mark Up to Include Women

  38. House of Representatives Rules Committee Chaired by a Howard Smith (D-VA) a segregationist who vowed not to schedule the bill for floor debate.

  39. Senate Bill had support from Majority and Minority leaders in the Senate

  40. Senate Senate leadership scheduled the bill for floor debate

  41. Senate Floor Action Filibuster – Strom Thurmond (R-Sc)

  42. Kennedy’s Assassination • The assassination of President Kennedy occurs as the Civil Rights Act is stalled in both the House of Representatives and the Senate. • The assassination causes sympathy for Kennedy’s cause, and the filibuster is broken on the Senate and in the House, Congressman Cellar files a discharge petition.

  43. The Conference Committee Adopted the Senate version of the bill which was stronger than the House version. Bill went back to both chambers and passed by large margins.

  44. President Johnson Signs the Civil Rights Act into law July 2, 1964

  45. Supreme Court Ruling Upholds Civil Rights Act of 1964 Heart of Atlanta Motel v. United States (1964)

  46. The Civil Rights Act of 1964 The Civil Rights Act of 1964 has been extended over the years and currently has 11 titles • Title I: Voter Registration • Title II&II: Outlaws discrimination in public • Title IV: Outlaws discrimination in school • Title V: Gives enforcement power • Title VI: Prevents discrimination in agencies that receive federal funds • Title VII: Prevents discrimination in hiring

  47. Civil Rights Act of 1964 • Title VIII: Strengthens enforcement • Title IX: Moved civil rights trials with all white juries or segregationist judges to federal courts for a fair trial. • Title X: Establish Community Relations Services to investigate discrimination in community disputes • Title XI - Established harsher penalties for violating the Civil Rights Act

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