Civil Liberties and Civil Rights

Introduction

Game Plan

• This week we will study one Amendment at a time, starting with the text of the Amendment and then following the Supreme Court (SCOTUS) cases that further explain that Amendment.

• Each of you will be given court cases and legal terms to research over the weekend. Complete this by Tuesday – you will be responsible for teaching your classmates.

How to Brief a Case• Your brief of a case must include the following:

– Citation: The Name and Date of the Case• Gitlow v. NY (1925)

– Facts of the Case:• Gitlow published a socialist manifesto, which caused the State

of NY to charge him with advocating the violent overthrow of the U.S. Government,

– Question: • Does the First Amendment Free Speech guarantee include

speech that advocates overthrowing the government?• Does the First Amendment govern the behavior of State (as

opposed to federal) governments?– Decisions:

• The government may suppress speech that directly advocates the overthrow of the government.

• The 14th Amendment Due Process clause means that the First Amendment does apply to State governments (incorporation).

What’s the Difference Between Civil Liberties and Civil Rights?

• Civil Liberties are those rights protected in the Bill of Rights – Free Speech, Freedom from Cruel and Unusual Punishment, Freedom from Unlawful Searches. These rights are GUARANTEED.

• Civil Rights are those rights that grew out of the Fourteenth Amendment – the promise that you will be treated equally under the law. They usually involve things that are not guaranteed (you do not have the right to a specific job), but rather things that you will not be denied due to discrimination (you will not be refused a job because you are a woman).

What’s the Difference Between Civil Liberties and Civil Rights?

• They are interchangeable. While the definitions on the previous page are correct, almost everyone uses them interchangeably (and, technically, incorrectly).

• For example, the American Civil Liberties Union (ACLU) uses the courts to fight to protect BOTH the liberties guaranteed by the Bill of Rights, and the civil rights promised by the Fourteenth Amendment. They use the phrase “civil liberties” to describe everything they do.

Vocabulary

• Habeas corpus: – “produce the body”– A Writ of Habeas Corpus is a court order requiring

government officials to present a prisoner to the court.– Often requested by death row prisoners as the request that

they be allowed to appeal to the court to delay/overturn their execution.

• Ex post facto– The Constitution forbids ex post facto laws.– Retroactive laws – laws that make an act a crime that was

not a crime when it was committed.– Laws may be retroactive if they work in favor of the accused

(i.e. shorten a penalty, or make something no longer a crime).

Vocabulary

• Bill of Attainder– Legislation, punishes a person or group of people without a

trial.– Forbidden by the Constitution.

The U.S. Constitution Applies to the FEDERAL GOVERNMENT

• “Incorporation” – how the Bill of Rights has been made to apply to actions of the governments of all 50 states.

• The Fourteenth Amendment states “nor shall any State deprive any person of life, liberty, or property, without the due process of law”

• When you read cases that concern the Bill of Rights and State action (i.e. police behavior), you will see the 14th Amendment “Due Process” clause being used to make the relevant Amendment apply to the State.

• Incorporation has been a slow process – are you surprised to learn that the Bill of Rights didn’t originally apply to the States?

FIRST AMENDMENT

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

– Both Freedom from an official government religion and Freedom to practice the religion of your choice (or no religion)

– Freedom of Speech– Freedom of the Press– Right to Assemble– Right of Petition

First Amendment: Terms and Cases (Free Speech)

• Gitlow v. New York• Schenck v. United States• Brandenburg v. Ohio• Texas v. Johnson• Miller v. California• Libel / Slander• Symbolic Speech• Prior Restraint• Fighting Words• New York Times v. Sullivan• Tinker v. Des Moines• Chilling effect

First Amendment: Terms and Cases (Freedom of Religion)

• Lemon v. Kurtzman• Everson v. Board of Education• Engle v. Vitale

FOURTH AMENDMENT

The Fourth Amendment

• “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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Fourth Amendment: Terms and Cases

• Probable cause• Mapp v. Ohio• Exclusionary rule

FIFTH AMENDMENT

The Fifth Amendment

• “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Fifth Amendment: Terms and Cases

• Double Jeopardy• Eminent Domain• Miranda v. Arizona

SIXTH AMENDMENT

The Sixth Amendment

• “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”

The Sixth Amendment: Terms and Cases

• Gideon v. Wainwright

EIGHTH AMENDMENT

The Eighth Amendment

• “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Eighth Amendment: Terms and Cases

• Furman v. Georgia• Gregg v. Georgia

FOURTEENTH AMENDMENT

The Fourteenth Amendment• “Section 1. 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.”

• Sections 2-5 address representation in Congress, eligibility for public office, and payment of war debts.

• All 5 sections were originally designed to address the causes of the Civil War, and to exclude former Confederates from the US government.

The Fourteenth Amendment

• The 14th Amendment’s “due process clause” allowed the Supreme Court to incorporate the Bill of Rights to State governments.

• The 14th Amendment is the basis of all SCOTUS decisions protecting Civil Rights.

• All civil rights advocates – African Americans, Latinos, American Indians, Women, Persons with Disabilities, Gays – have used the 14th Amendment to fight for their civil rights.

Fourteenth Amendment: Terms and Cases

• Plessy v. Ferguson• Brown v. Board of Education• Bakke v. California• Strict scrutiny• Suspect classification• de facto and de jure discrimination• Affirmative action

PRIVACY

The Right to Privacy

• The words “Right to Privacy” do not appear in the U.S. Constitution

• The authors of the Constitution feared that the presence of specifically defined (“enumerated”) rights would cause people to believe that no other rights existed.

• The 9th and 10th Amendments were written to counter the belief that only enumerated rights exist.

• In 1965, SCOTUS identified “penumbras” – unstated (“unenumerated”) liberties implied by stated rights.

• Privacy is protected by a penumbra.

The Right to Privacy: Logic

• The 9th Amendment says there are rights not enumerated in the Bill of Rights.

• The Bill of Rights says:– The government may not put soldiers in your house– The government may not enter your house easily

These imply that a right to privacy, a “right to be left alone” (Justice Brandeis) exists.

• SCOTUS did not discuss the right to privacy explicitly until 1965.

Privacy: Terms and Cases

• Griswald v. Connecticut• Roe v. Wade• Lawrence v. Texas• Planned Parenthood v. Casey

Keep Your Graphic Organizers!!!

• Many Political Science and History classes in college will include this information…– Constitutional Law– Criminal Law– Women’s Studies– US Government– Minority Studies

• You already have a head start on creating a pretty great study guide!