CIVIL LIBERTIES

• • Civil Liberties: the legal constitutional protections against the government The Bill of Rights: first 10 amendments, which protect basic liberties, such as religion and speech

• The Bill of Rights and the States – Written to restrict the national government only • “ Congress shall make no law… ” •

Barron v. Baltimore

(1833) (Bill of Rights did not apply to the states) – Most have been “

incorporated

” through the 14 th Amendment, and now restrict state and local governments • First Amendment protection of speech first incorporated to states in

Gitlow v. New York

(1925)

• The Establishment Clause – “ Congress shall make no law respecting the establishment of religion… ” –

Lemon v. Kurtzman

(1971) – Government funding to religious schools • • • Secular legislative purpose Neither advance nor inhibit religion No excessive government “entanglement” with religion

• The Establishment Clause (continued) – Are school vouchers constitutional?

•

Zelman v. Simmons-Harris

(2002) – Prayer in public schools violates Establishment Clause.

•

Engle v. Vitale

(1962) – What about displays of the Ten Commandments?

• Alabama Supreme Court Chief Justice display in 2003.

– Pledge of Allegiance, religious holidays, high school sports prayers, religious clubs on campus, nativity scenes on public property, prayers at the beginning of gov’t meetings

• The Free Exercise Clause – Prohibits government from interfering with the practice of religion – Some religious practices may conflict with other rights, and then be denied or punished •

Employment Division (Oregon) v. Smith

(1988) (Native American peyote) • Religious Freedom Restoration Act (1993) –

Polygamy? Rastafarians? Santeria (animal sacrifice)?

• Prior Restraint – Definition: a government preventing material from being published; censorship; unconstitutional •

Near v. Minnesota

(1931) – May be permissible during wartime – One may be punished

after

something is published.

• Free Speech and Public Order – Speech is limited if it presents a present danger.

” •

Schenck v. US

(1919) “ clear and – Permissible to advocate the violent overthrow of government in abstract, but not to incite anyone to imminent lawless action •

Brandenburg v. Ohio

(1969) – Speech is generally protected in public places, but usually not on another’s private property.

Speech is limited if it presents a “ clear and present danger.

”

• Free Press and Fair Trials – Is extensive press coverage of high profile trials (OJ Simpson; Martha Stewart) permissible? • The public has a right to know what happens; trial must be open to the public.

• The press ’ own information about a trial may

not

be protected.

– Yet, some states have passed shield laws to protect reporters.

• Obscenity – No clear definition on what constitutes obscenity • Justice Potter Stewart: “ I know it when I see it.

” –

Miller v. California

obscene if the work: (1973) stated that materials were • appeals “ to a prurient interest in sex ” • • showed lacks value ” “ “ patently offensive ” sexual conduct serious literary, artistic, political or scientific – Decisions on obscenity are based on local community standards.

• Libel and Slander – Libel: the publication of false or malicious statements that damage someone’s reputation – Slander: the same thing, only spoken instead of printed •

New York Times v. Sullivan

(1964): statements about public figures are libelous only if made with reckless disregard for truth.

– Private individuals have lower standard to meet to win libel lawsuits.

• Symbolic Speech – nonverbal communication, such as burning a flag or wearing an armband – Generally protected along with verbal speech •

Texas v. Johnson

(1989): Burning the American flag is symbolic speech protected by the First Amendment.

• • Definition: communication in the form of advertising – Generally the most restricted and regulated form of speech (Federal Trade Commission) Regulation of the Public Airwaves – Broadcast stations must follow Federal Communication Commission rules.

– Regulation must be narrowly tailored to promote a compelling governmental interest.

• • Right to Assemble – Generally permissible to gather in a public place, but must meet reasonable local standards, such as fire codes and apply for permits – Balance between freedom and order Right to Associate – Freedom to join groups or associations without government interference •

NAACP v. Alabama

(1958)

• • Most of the Bill of Rights (Amendments 4, 5, 6, 7, and 8) apply to defendants ’ rights.

Interpreting Defendants’ Rights – Criminal Justice personnel are limited by the Bill of Rights and failure to follow constitutional protections may invalidate a conviction.

– Courts continually rule on what is constitutional and what is not.

• Searches and Seizures – Probable Cause: when the police have reason to believe that a person should be arrested – Unreasonable searches and seizures: evidence is obtained in a haphazard or random manner, prohibited by the Fourth Amendment – Exclusionary Rule: the rule that evidence, no matter how incriminating, cannot be introduced • into trial if it was not constitutionally obtained

Mapp v. Ohio

(1961)

• Self-Incrimination – Definition: when an individual accused of a crime is compelled to be a witness against himself or herself in court – Police must inform suspects of these and other Fifth Amendment protections upon arrest.

•

Miranda v. Arizona

(1966) – Protection from coerced confessions and entrapments

• • The Right to Counsel – The state must provide lawyers in most criminal cases (Sixth Amendment).

•

Gideon v. Wainwright

(1963) Trials – Plea bargaining: a bargain between the prosecution and defense for a defendant to plead guilty to a lesser crime; 90 percent of cases end here and do not go to trial – Juries generally consist of 12 people, but unanimity is not always needed to convict.

– The Sixth Amendment also guarantees a and public ” trial.

“ speedy

• Cruel and Unusual Punishment – The Eighth Amendment forbids cruel and unusual punishment.

– The death penalty is not cruel and unusual. It is “ an extreme sanction, suitable to the most extreme crimes.

” •

Gregg v. Georgia

(1976) – The use of the death penalty and application varies by state.

• Is There a Right to Privacy?

– Definition: the right to a private personal life free from the intrusion of government – Not explicitly stated in the Constitution, but implied by the Fourth and Ninth Amendments •

Griswold v. Connecticut

(1965)

• Controversy over Abortion -

Griswold v. Connecticut

(1965) – right to privacy - contraceptives –

Roe v. Wade

(1973) –

Planned Parenthood v. Casey

(1992) – Protections of those seeking an abortion

• • Civil Liberties and Democracy – Rights ensured in the Bill of Rights are essential to democracy.

– Courts typically protect civil liberties from excesses of majority rule.

Civil Liberties and the Scope of Government – In deciding between liberty and order, the United States generally chooses liberty.

– Civil liberties limit the scope of government, even though government efforts are needs to protect rights.

• • Civil liberties are expressed in the Bill of Rights.

These are the individual ’ s protections—for religion, expression, assembly, and the accused—against the government.

• Legislatures and courts constantly define what the Bill of Rights protects in practice.

Civil Rights and Public Policy

• • • • Civil Rights – Definition: policies designed to protect people against arbitrary or discriminatory treatment by government, business, or individuals Racial Discrimination Gender Discrimination Discrimination based on age, disability, sexual orientation and other factors

• • • Conceptions of Equality – Equal opportunity: same chances – Equal results: same rewards Early American Views of Equality The Constitution and Inequality – Equality is not in the original Constitution.

– First mention of equality in the 14 th “ …equal protection of the laws ” Amendment:

Race, the Constitution, and Public Policy

• The Era of Slavery – Dred Scott v. Sandford (1857) • Slaves had no rights, they are property.

• Invalidated Missouri Compromise – The Civil War – The Thirteenth Amendment • Ratified after Union won the Civil War • Outlawed slavery

• The Era of Reconstruction and Resegregation – Jim Crow or segregational laws • Relegated African Americans to separate facilities – Plessy v. Ferguson (1896) • Upheld the constitutionality of “ equal but separate accommodations ”

• The Era of Civil Rights – Brown v. Board of Education (1954) • Overturned Plessy • School segregation inherently unconstitutional • Integrate schools “ with all deliberate speed ” – Busing of students solution for two kinds of segregation: • • •

de jure,

“ by law ”

de facto,

“ in reality ” This ultimately fell apart as it was politically unpopular. Schools are still very segregated by race.

• The Era of Civil Rights (continued) – 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) • Strengthened voting right legislation

• Getting and Using the Right to Vote – Suffrage: the legal right to vote – Fifteenth Amendment: extended suffrage to African Americans – Poll Taxes: small taxes levied on the right to vote – White Primary: Only whites were allowed to vote in the party primaries.

• Getting and Using the Right to Vote – Smith v. Allwright (1944): ended white primaries – Twenty-fourth Amendment: eliminated poll taxes for federal elections – Harper v. Virginia State Board of Elections (1966): no poll taxes at all – Voting Rights Act of 1965: helped end formal and informal barriers to voting

• Other Minority Groups – Native Americans • Santa Clara Pueblo v. Martinez (1978) –

Reinforced tribal independence

– Hispanic Americans • Mexican American Legal Defense and Education Fund – Asian Americans • Korematsu v. United States (1944) –

Supported the internment of the Japanese on national security grounds

Pearson Education, Inc., Longman © 2008

• • The Battle for the Vote – Nineteenth Amendment: extended suffrage to women in 1920 The “ Doldrums ” : 1920-1960 – Laws were designed to protect women, and protect men from competition with women.

– Equal Rights Amendment first introduced in Congress in 1923

Women, the Constitution, and Public Policy

• The Second Feminist Wave – Reed v. Reed (1971) • “ Arbitrary ” gender discrimination violated 14 th Amendment ’ s Equal Protection Clause – Craig v. Boren (1976) • “ Medium scrutiny ” discrimination standard established for gender – Equal Rights Amendment fails ratification by states (1982)

Women, the Constitution, and Public Policy

• • • • Women in the Workplace – The Civil Rights Act of 1964 banned gender discrimination in employment.

Wage Discrimination and Comparable Worth – The Supreme Court has not ruled on this issue.

Women in the Military – Only men may be drafted – women recently allowed to apply for combat positions.

Sexual Harassment – Prohibited by Title VII of Civil Rights Act of 1964

• • Civil Rights and the Graying of America – Age classifications not suspect category, but fall under rational basis test.

Civil Rights and People with Disabilities – Americans with Disabilities Act of 1990 • Requiring employers and public facilities to make “ reasonable accommodations ” for those with disabilities • Prohibits employment discrimination against the disabled

• Gay and Lesbian Rights – Bowers v. Hardwick (1986) upheld laws against private sexual acts – Lawrence v. Texas (2003) • • Overturned Bowers Private sexual acts are protected by the Constitution – Gay marriage • Many state constitutions amended to prohibit practice

• • Definition: a policy designed to give special attention to or compensatory treatment of members of some previously disadvantaged group In education – Regents of the University of California v. Bakke (1978) • • Racial set asides unconstitutional Race could be considered in admissions – Grutter v. Bollinger (2003) • Race could be considered a “ plus ” in admissions

• 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

• • Civil Rights and Democracy – Equality favors majority rule.

– Suffrage gave many groups political power.

Civil Rights and the Scope of Government – Civil rights laws increase the size and power of government.

– Civil rights protect individuals against collective discrimination.

In Summary

• • • Racial minorities and women have struggled for equality since the beginning of the republic.

Constitutional amendments and civil rights legislation guarantee voting and freedom from discrimination.

Civil rights have expanded to new groups.