civil liberties, vs civil rights; best

Civil Liberties & Civil Rights

The Evolution of the Bill of Rights

What Civil Liberties Do You Value Most?

1. Freedom of Speech2. Freedom of Religion3. Right to a jury trial4. Freedom of the press5. Freedom from cruel and unusual punishment6. Right to keep and bear arms7. Right to control your own property8. Freedom of assembly9. Freedom from quartering troops in your own

home10.Freedom from unreasonable searches and

seizures

U.S. Bill of Rights

The Bill of Rights (i.e., the first 10 amendments to the U.S. Constitution) were adopted in 1791 to protect citizens from “improper” government action

Liberty Rights

Freedom Government

Control

Civil Liberties and Civil Rights:What’s the Diff?

Civil Liberties• The Bill of Rights• The legal

constitutional protections against the government

• Limitations on government power

• What the government cannot do

Civil Rights• 14th Amendment• What the

government must do to ensure equal protection

• Protects against discriminatory treatment

• Require government action

Civil Liberties and the Supreme Court

• Judicial interpretations shape the nature of civil liberties, and as these interpretations change over time, so do our rights

• To understand the civil liberties and freedoms we have, we will examine several key Supreme Court decisions

• One of the most common controversies addressed by the court:• Should the Bill of Rights apply to STATE

governments?

The Incorporation of the rights

• Barron v Baltimore 1833• Fourteenth Amendment • Gitlow v New York 1925

• Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

The Incorporation of the rights

• Gitlow v New York 1925• Question:

•Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment?

• Conclusion: •Threshold issue: 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). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

Selective Incorporation of the Bill of Rights

• The BoR were originally written to protect citizens from the national government (“Congress shall make no law…”)• Barron v. Baltimore (1833): The BoR only

apply to national government… NOT the states

• However, over time most liberties protected by the BoR have been “selectively incorporated” (or applied) to the states through the 14th Amendment’s due process clause

Selective Incorporation of the Bill of Rights

• The first Supreme Court case to “selectively incorporate” a part of the BoR was Gitlow v. New York (1925)• Applies first Amendment protection of free

speech to the states

• Since Gitlow, the Supreme Court has gradually incorporated other selected parts of the BoR to the states

First Amendment Conflicts

• Just how does the Constitutional statements about religion and gov’t conflict?•establishment clause•free exercise clause

http://schlissellaw.files.wordpress.com/2009/04/establishment-clause-separation-church-state1.jpg

Rights in Conflict

We know people support rights in theory but their support may disappear when it comes time to put those rights into practice - ex: demands of American Nazi Party in 1977 to march through a Jewish neighborhood in Skokie, Ill

Freedom of Religion

Two Key Principles• The Establishment Clause: The

Separation of Church and State• “Congress shall make no law respecting the

establishment of religion…”

• The Free Exercise Clause:• Prevents the government from prohibiting

individuals from practicing religion of their choice

• How can these two conflict with one another?

Effective Oral Arguments

Morse v. Frederick (2007)

• At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus.” Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick argued this action was a violation of his First Amendment right to freedom of speech.

Freedom of Religion

• Lemon v. Kurtzman (1971): Direct state-aid cannot be used to fund religious instruction

• Set-up the three-part “Lemon test:”• For a law to be constitutional under the

establishment clause, it:• Must have a secular (non-religious) legislative purpose• Can neither advance nor inhibit religion• Must not result in excessive government

“entanglement”

• If any of these conditions are violated, the law is unconstitutional… but Court has changed opinion

Freedom of Religion

The Establishment Clause: Other Issues• Does prayer in public schools violate Establishment Clause?• YES! Engel v. Vitale (1962) and Wallace v. Jaffree (1985)

• What about prayer at graduations? • YES! Lee v. Weisman (1992)

• Can families use state issued credits (vouchers) to “purchase” private, religious education?• YES! Zelman v. Simmons-Harris (2002)

• What about displays of the Ten Commandments in courthouses and other government buildings?• Yes (Van Orden v. Perry) and No (McCreary County v. ACLU), 2005• Supreme Court… OK to display as long as it is secular

Freedom of Religion

The Free Exercise Clause• Prohibits government from

interfering with the practice of religion• But not always…. Reynolds v. U.S.

(1879)• Some religious practices may

conflict with other rights, and then be denied or punished• Oregon v. Smith (1990): Supreme

Court rules that the state of Oregon could deny unemployment benefits to two drug counselors for using peyote religiously

• Controversial… Freedom Restoration Act (1993) passed in response. Declared unconstitutional

Freedom of Speech, Press and Assembly

“Congress shall make no law… abridging the freedom of speech or of the press”

• What is the purpose of free speech and the press?

• Important Note: Free speech and press are NOT absolute (without restriction)

• Thus, when it comes to free speech and the press, it is up to the Supreme Court to determine what the government can and cannot regulate

Limiting Speech to Ensure Public Order• Schenck v. U.S. (1919). Can the

government limit free speech during wartime? • Clear and present danger test

• Brandenburg v. Ohio (1969) But what constitutes a danger? • The direct incitement test: the government

can punish speech that will likely lead to imminent illegal behavior

• Makes it more difficult to punish speech

Protected Speech• The Supreme Court will not tolerate prior

restraint (censorship) of speech or the press (before the fact)• Near v. Minnesota (1931): selectively incorporates free

press• New York Times v. U.S. (1971) and the Pentagon Papers

• The Court has also extended protections to symbolic speech• Tinker v. Des Moines (1969)• Texas v. Johnson (1989) protects flag burning as

symbolic speech

Protected Speech• Freedom NOT to Speak

• West Virginia v. Barnette (1943): Students cannot be compelled to salute the flag

• “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” (Justice Jackson)

Protected (and Unprotected) Speech• Hate Speech and “Fighting Words:”

Can the court regulate these types of speech?• Chaplinksy v. New Hampshire (1942): Words

that instigate another person to fight can be regulated and are not protected by the first amendment

• BUT, in R.A.V. v. St. Paul (1992), the Court ruled that the first amendment prohibits the governments from “silencing speech on the basis of content” (i.e. hate speech)

Unprotected Speech:• Defamation of character: Libel

(written) and slander (spoken)• NY Times v. Sullivan (1964): Court

declares that libel must show “actual malice” or knowing disregard for the truth

Unprotected Speech:• Obscenity: But what is considered obscene?

• Roth v. United States (1957): In order to be considered unprotected, obscene speech, the must be:

• “utterly without redeeming social importance”• “Whether to the average person… the dominant theme of the

material” appeals to an unhealthy interest in sex (“prurience”)

• Miller v. California (1971): Tries to make it easier for states to define obscenity by adding to Roth test:

• The work appealed to a “prurient interest in sex”• The work portrays sexual conduct “in a patently offensive

way”• The work “lacks serious literary, artistic, political, or scientific

value.”

The Right to Assemble• What is the purpose?

• To allow citizens to communicate their ideas on public issues

• BUT, can conflict with public order, so reasonable limits (time, place and manner) can be placed on assembly

• Are there limitations on the message of the assembly? • NO! Terminiello v. City of Chicago (1949)• Smith v. Collin (1978)

The Right to Privacy: Is There a Right to Privacy in the Constitution?

• Definition: the right to a private personal life free from the intrusion of government

• Not explicitly stated in the Constitution, but implied through the penumbras (implied rights) of the Bill of Rights • Privacy is a transcendent, constitutional value, which

is fundamental to the American way of life and to other basic rights outlined in the Bill of Rights

• Supreme Court agrees that a right to privacy exists:• Griswold v. Connecticut (1965): CT law outlawing

access to contraception violated constitutional right to privacy of married couples to make decisions about their families

The Right to Privacy: The Abortion Debate; Issue that Proved Problematic during the Health Care Legislative Process

Roe Revisited: Planned Parenthood v. Casey (1992)

• The issue: Was the Pennsylvania Abortion Control Act of 1982 constitutional? • Law required that a woman seeking an abortion

meet several conditions

• Would Roe be overturned?• No… Justice O’Connor argued that stare

decisis (precedent of the Court) required the Court to not overturn Roe. • “A generation of women had come to depend on

the right to an abortion.” • The Court held that states cannot prohibit abortion

prior to viability (before the fetus could live independently outside of the mother’s womb).

Roe Revisited: Planned Parenthood v. Casey (1992)

• HOWEVER, the Court allowed certain restrictions on abortions• States can regulate abortions before viability as long

as the regulation does not place an “undue burden” (substantial obstacle) on the access to abortion.

• After fetal viability, however, states have increased power to restrict the availability of abortions to protect the health of the woman and the potential life of the fetus.

• Thus, states can pass some laws that regulate abortion, but these laws cannot place a “substantial obstacle in the path of a woman seeking an abortion.”

• But what is a “substantial obstacle?”

The Rights of Defendants and the Accused

• Much of the Bill of Rights (Amendments 4, 5, 6, 7, and 8) apply to people accused of crimes

• Like other civil liberties, defendants’ rights are not clearly defined in the BoR• Just how speedy is a “speedy” trial?• How “cruel and unusual” must a punishment be

to violate the 8th amendment?

• Courts continually rule on what action of the government is constitutional and what is not.

Searches and Seizures• Probable Cause: police must have

reason to believe that a person should be arrested

• Unreasonable searches and seizures (4th Amendment): evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment• Probable cause and a search warrant are

required in most cases to make a search and seizure constitutional

Searches and Seizures• Exclusionary Rule: the rule that evidence,

no matter how incriminating, cannot be introduced into trial if it was not constitutionally obtained• The Court broadens the application of this rule

in Mapp v. Ohio (1961)• Selective incorporation: Because of Mapp, the

exclusionary rule applies to state governments

• What about the Patriot Act?

Self-Incrimination• Definition: when an individual accused

of a crime is compelled to be a witness against himself or herself in court• Court has ruled that police must inform

suspects of these and other Fifth Amendment protections upon arrest.• Miranda v. Arizona (1966)

• However, a coerced confession does not necessarily mean a mistrial if it is a “harmless error”

Miranda Warnings1. You have the right to remain silent. 2. Anything you say can and will be used

against you in a court of law. 3. You have the right to have an attorney

present before any questioning. 4. If you cannot afford an attorney, one will

be appointed to represent you before any questioning. Do you understand these rights?

The Right to Counsel (Sixth Amendment)

• Always ensured in federal courts, but not state

• Gideon v. Wainwright (1963)• Court rules that the state must provide

lawyers in the case of a felony

Cruel and Unusual Punishment (8th Amendment)

• Centered around the death penalty• Furman v. Georgia (1972): Court overturned

Georgia’s death penalty law because it punishment was arbitrary and random

• Gregg v. Georgia (1976)• The court has ruled that the death penalty is

not cruel and unusual. • It is “an extreme sanction, suitable to the

most extreme crimes.”

Civil Liberties Wrap-up

• Judicial interpretations shape the nature of civil liberties, and as these interpretations change over time, so do our rights

• To understand the civil liberties and freedoms we have (and how they have changed), we examined several key Supreme Court decisions

• One of the most common controversies addressed by the court:• Should the Bill of Rights apply to STATE

governments?

Civil Rights:The Struggle for Equality

The Struggle for Racial Equality

•The Era of Reconstruction and “Resegregation”•Jim Crow laws

•Relegated African Americans to separate facilities

•Key question: What would the Supreme Court do about segregation?

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are

citizens of the United States 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

law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment

Does treating people equally mean treating people the same?

Introduction: Defining Civil Rights

What Types of Discriminatory

Treatment Have Groups Faced?

• Racial Discrimination• Gender

Discrimination• Discrimination based

on age, disability, sexual orientation and other factors

Civil Rights• 14th Amendment issues• Action required of the

government to ensure equality

• Protects against discriminatory treatment

• Health Care a Fundamental Right?

What does equality mean?

• Conceptions of Equality• Equal opportunity = same chances?

OR• Equal results = same rewards?

• The Constitution and Inequality• Equality is not in the original Constitution.• First mention of equality in the 14th

Amendment: forbids states to deny “…equal protection of the laws”• But what does this mean?

• Key Milestones During The Era of Slavery• Dred Scott v. Sandford (1857)

• Slaves had no rights.• Invalidated Missouri Compromise

• The Civil War• The Thirteenth Amendment

• Ratified after Union won the Civil War• Outlawed slavery

• Fourteenth Amendment• Fifteenth Amendment

The Struggle for Equality: Segregation, Equality and the Supreme Court

• Conflicting ideas of what it means to treat people equally has presented problems over the years for our Supreme Court

• When the SC must decide cases where people claim to have been treated "differently" in violation of the 14th, justices need to determine whether different treatment leads to inequality. Plessy v. Ferguson was their first attempt to do this.

The Struggle for Racial Equality:Plessy v. Ferguson (1896)

• The Supreme Court rules in favor of the state of Louisiana, declaring that the “Separate Car Act” was constitutional

• Establishes “Separate but equal” doctrine: Segregation of blacks and whites was constitutional as long as both have access to equal facilities

• The Court’s reasoning: The Constitution and the law are not responsible for promoting social equality, just equal treatment under the law. Do you agree?

The Struggle for Racial Equality:Plessy (Cont’d)

• We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. . . . The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane

The Struggle for Racial Equality:Brown v. Board of Education (1954)

• Chief Justice Earl Warren argues that “in the field of public education…separate but equal has no place.”

• “Separate educational facilities are inherently unequal.”

• The case overturns Plessy v. Ferguson and ends segregation in public schools

The Struggle for Racial Equality:Brown II (1955)• BUT, Brown brought up questions…

• How quickly should schools be desegregated?• What can the Supreme Court do to enforce its decisions?• This question was never addressed in the first Brown case!

• In 1955, the Supreme Court rules that a “prompt and reasonable start” to desegregation should take place “with all deliberate speed.”

• What does that mean? “With all deliberate speed”?????

• Desegregating Schools:• Busing of students became the solution for two kinds of

segregation:• de jure, “by law” segregation• de facto, “in reality” segregation

(Furman Pic)

Civil Rights Act of 1964• Made racial discrimination illegal in hotels,

restaurants, and other public accommodation• Forbade employment discrimination based on

race• Created Equal Employment Opportunity Commission

(EEOC) to monitor and enforce rules

• Strengthened voting right legislation• Provided for the withholding of federal funds for

discriminatory state and local programs• Authorized Department of Justice to initiate

lawsuits to desegregate public facilities and schools

Impact of Civil Rights Act of 1964• Education

• Authorized the federal government to bring action against school districts who failed to comply with Brown

• Employment• Title VII of the act prohibited employment

discrimination based on race, gender, sex, age, and national origin

The Right to Vote• Suffrage: the legal right to vote• Fifteenth Amendment: extended suffrage

to African Americans• Restricted Black Voting Rights During

Jim Crow• Poll Taxes: small taxes levied on the right

to vote• Literacy tests• White Primary: Only whites were allowed

to vote in the party primaries.

• The Right to Vote• Twenty-fourth Amendment (1962):

eliminated poll taxes for federal elections• Voting Rights Act of 1965: helped end

formal and informal barriers to voting• Ended discriminatory voter registration tests• Authorized federal voting registrars to sign up

black voters

The Struggle for Racial Equality:Affirmative Action

• A policy designed to give special attention or compensatory treatment to members of some previously disadvantaged group. •Implemented in 1965 by Johnson’s

executive order

In education• Regents of the University of CA v. Bakke

(1978)• First SC case to address constitutionality of AA,

brought up issue of reverse discrimination• Court rejected the university’s use of “quotas,”

which reserved a fixed number of seats for racial minorities

• HOWEVER, Court declared affirmative action programs are constitutional if they consider race as a "plus" in the application process.

In education (cont’d)• Gratz v. Bollinger (2003)

• Gratz: Supreme Court struck down U Michigan’s undergraduate “point system” that awarded points to minority applicants because race became a deciding factor that did not treat applicants as individuals

In education (cont’d)• Grutter v. Bollinger (2003)

• Grutter: BUT, allowed University of Michigan Law School to consider race as one of many factors because diversity is a compelling interest in higher education

• Significance: Court acknowledges that AA programs are acceptable and diversity is a legitimate goal in education, BUT race can not be the predominant factor (no quotas) AND applicants must be treated as individuals, not as members of a race

The Struggle for Equality:Affirmative Action

In employment

• United Steelworks v. Weber (1979)• Quotas to remedy past discrimination are

constitutional.

• Adarand Constructors v. Pena (1995)• To be constitutional, affirmative action must be

“narrowly tailored” to meet a “compelling governmental interest.”

• Did not ban affirmative action, but severely limited its reach

DISCUSSION

• Affirmative Action programs are necessary to safeguard equal opportunity in both education and employment for minorities

Today’s Key Questions

• What other groups have historically struggled for equal treatment under the law? Which groups continue to fight for their civil rights?• What types of discrimination have these

groups faced?• What governmental action has been taken

in addressing these civil rights issues?

The Struggle for Civil Rights: Other Groups

• Other minorities• Asian Americans, Arab Americans,

Hispanic Americans

• Women• Disabled• “Older” Americans• Gays and Lesbians

The Struggle for Gender Equality

• Early Women’s Rights: The Battle for the Vote• Nineteenth Amendment:

extended suffrage to women in 1920

• Fragile alliance of diverse women’s groups quickly disintegrated

• Widespread women’s rights activity would not emerge until 1960s

• Equality Under the Law• National Organization for

Women (NOW) pushed for Equal Rights Amendment (ERA) from 1923 to 1980s• Passes in both houses of

Congress in 1972• States fail to ratify over the next

eight years (35 vote yes, 38 needed)

• Support for amendment has died out as Supreme Court has extended 14th Amendment to women

• Equality in Education and Employment• Title VII of Civil Rights Act of 1964

• Prohibits gender discrimination by private and public employers

• Used to fight sexual harassment

• Title IX of 1972 Educational Amendments• Prevents educational institutions receiving

federal funds from discriminating against female students

• Often used to ensure equal access, resources and funding for sports teams

• Other issues:• Women in the military• Equal pay• Sexual harassment

• Harris v. Forklift Systems (1993): Sexual harassment violates Civil Rights Act of 1964 when the workplace environment becomes “hostile or abusive”

• Faragher v. City of Boca Raton (1998): The employer is responsible for preventing and eliminating harassment at work

• Davis v. Monroe County Board of Education (1999): Schools can be held liable!

The Struggle for Equality: Other Minority Groups

Hispanic Americans• Largest and fasting growing minority

group• Controversial issues

• Should the government provide services to those that enter the country illegally?

• Bilingual education

The Struggle for Equality: Other Minority Groups

Asian Americans• Korematsu v. United

States (1944): Court declares Japanese internment camps constitutional due to a compelling state interest to ensure national security during a time of war

Controversial Civil Rights Issues Today

The Struggle for Equality: Disabled Americans

• What discrimination have Americans with disabilities faced?

• Government Intervention: Americans with Disabilities Act of 1990• Disabled person = someone with a physical or mental

impairment that limits one or more life activities• Guarantees access to public facilities, employment,

and communication services • Employers/schools must acquire or modify work

equipment, adjust schedules, or make facilities accessible

The Struggle for Equality: Disabled Americans

Controversy: Which ailments are considered true disabilities?• Since 1999, the Supreme Court has

redefined and limited the scope of the ADA. Workers are not “disabled” if their conditions can be corrected with medication or devices

The Struggle for Equality: Older Americans and Age Discrimination

• Older Americans have traditionally faced discrimination in workplace. Why?

• Government Intervention: Age Discrimination in Employment Act of 1967 (ADEA)• Prohibits discrimination in the workplace on the

basis of age unless is a bona fide requirement• Targets workers over 40• To win a lawsuit, the plaintiff must show that an

employer’s action (i.e. firing) was motivated by age

The Struggle for Equality: Gays and Lesbians

• What challenges have gays and lesbians faced in their struggle for equality?

• Government interventions• Bowers v. Hardwick (1986): Allowed states to ban

homosexual relations• Lawrence v. Texas (2003): Overturned Bowers

• Private homosexual acts are protected by the Constitution

• Gay marriage: Many state constitutions amended to prohibit practice, but a MA court decision allowed gay marriage

• Controversy: Do civil rights protections apply here?

Civil Rights Wrap-up

• Equality is essential to any democracy!• Racial minorities and women have struggled

for equality since the beginning of the republic.

• Our government has purportedly taken action in various ways (legislation, amendments, court rulings) in order to ensure equality

• Civil rights have expanded to new groups and issues of equality continue to be the subject of debate

DISCUSSION

The government should actively ensure that as many Americans as possible fall

under the protection of the ADA, including people who suffer from AIDS,

bad eyesight, and diabetes (for example)

DEBATE!

Civil rights and the Fourteenth Amendment’s guarantee of equal

protection under the law should not apply to gays and lesbians?

Right to Bear Arms

Right of Privacy

Right to Avoid Undo Search and Seizure

Right to Free Expression

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Right to Pursuit of Happiness?

civil liberties, vs civil rights; best

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