Civil Liberties

 Definition: Protect individuals from government overreach ("what government cannot

do"). Civil liberties refer to protections that prevent the government from infringing on
individual freedoms. These are typically expressed in the Bill of Rights and aim to ensure
individuals can live without excessive interference from government powers.
 Basis: Found in the Bill of Rights
 Types:
o Substantive liberties: Limit what government can do, such as restricting certain
actions or laws that could violate basic freedoms.
o Procedural liberties: Limit how the government acts, ensuring due process and
fairness in legal proceedings.

Key Amendments:

 1st Amendment: Freedom of speech, religion, press, assembly

o Limits: Libel, slander, obscenity, fighting words
o NY Times v. Sullivan (1964) highlight the distinction between protected speech and
harmful speech.
o Establishment Clause vs. Free Exercise Clause
 4th Amendment: No unreasonable searches or seizures
o Exclusionary Rule (Mapp v. Ohio): Illegally obtained evidence cannot be used
o Mapp v. Ohio (1961) extended the exclusionary rule to the states, ensuring illegally
obtained evidence cannot be used in court.
 5th Amendment: Due process, no double jeopardy, no self-incrimination
o Miranda Rights (Miranda v. Arizona): (1966) established Miranda rights, requiring
law enforcement to inform individuals of their rights during an arrest.
 8th Amendment: No cruel or unusual punishment
 (Miller v. Alabama): the Supreme Court ruled that mandatory life sentences without
parole for juveniles violated the 8th Amendment.
 9th Amendment: Unenumerated rights (basis for privacy rights)
o This has been the basis for recognizing rights like privacy in cases such as Griswold v.
Connecticut (1965) and Roe v. Wade (1973).

Key Court Cases:

 Barron v. Baltimore (1833): Established dual citizenship; Bill of Rights does not apply
to states
 Mapp v. Ohio (1961): Applied exclusionary rule to the states (4th Amendment)
 Miranda v. Arizona (1966): Police must inform suspects of rights (5th Amendment)
 Roe v. Wade (1973): Legalized abortion based on right to privacy
 Griswold v. Connecticut (1965): Privacy rights established
 Dobbs v. Jackson (2022): Overturned Roe v. Wade
Civil Rights

 Definition: Protect people through government action ("what government must do"),
nsuring equal treatment under the law and preventing discrimination.
 Basis: 14th Amendment
o Due Process Clause
o Equal Protection Clause
o Selective Incorporation: Applying Bill of Rights to states case by case

Segregation:

 De jure: By law
 De facto: By practice or custom
 Plessy v. Ferguson (1896): "Separate but equal" upheld segregation
 Brown v. Board (1954): Overturned Plessy, ruled segregation in schools unconstitutional
 Brown v. Board (1955): mandated that public schools desegregate "with all deliberate
speed," allowing local authorities to determine the pace and method of integration, which led to
delays and varying interpretations.

Voting Rights:

 Restrictions used: Literacy tests, poll taxes, white primaries, voter ID laws
 Voting Rights Act of 1965: Banned discriminatory practices
 Shelby County v. Holder (2013): Weakened the VRA; removed preclearance

Movements:

 Women’s Rights: Seneca Falls, 19th Amendment, ERA, Title IX

 LGBTQ+ Rights: Obergefell v. Hodges (same-sex marriage), anti-discrimination efforts
 Disability Rights: Americans with Disabilities Act (1990)

The Courts

Structure of the Federal Court System:

 District Courts → Court of Appeals → Supreme Court

 Jurisdiction: Based on geography and type of law
 The system is organized hierarchically, with district courts at the bottom, court of appeals in the
middle, and the Supreme Court at the top. Each court has jurisdiction over certain cases based
on geography and type of law.

Structure of State Courts:

 State Courts: Each state has its own court system, including trial courts, appellate courts, and
a state supreme court, which handle criminal, civil, and family law cases.

 State Appellate Courts: These courts review lower court decisions for legal errors without
conducting trials.

 State Supreme Court: The highest appellate court in the state, whose decisions are final
unless the U.S. Supreme Court intervenes.

 Jurisdiction: State courts have broader jurisdiction over state law matters but may transfer
cases involving federal law to federal courts.

Key Concepts:

 Judicial Review: Courts can declare laws/actions unconstitutional (Marbury v. Madison)

 Judicial Standing: Person bringing a case must be affected
 Writ of Certiorari: Request to have Supreme Court hear a case

Court Philosophies:

 Originalism: Constitution should be interpreted based on original intent (Scalia)

 Living Constitution: Meaning can adapt with time (Breyer)
 Judicial Activism: Courts should actively shape policy
 Judicial Restraint: Courts should defer to elected branches

Extra Notes:

 Civil Liberties vs. Civil Rights:

o Liberties: Protect freedom from the government (speech, religion)
o Rights: Protect freedom through the government (equal treatment)
 Libel: Written falsehood
 Slander: Spoken falsehood
Civil Liberties vs. Civil Rights:

Civil liberties and civil rights are often confused, but they are not the same—they serve
different purposes in protecting individuals within a democracy. Civil liberties are
protections from government actions. They are mostly found in the Bill of Rights, which
outlines freedoms like speech, religion, and the right to a fair trial. These rights limit what the
government can do to individuals. For example, in Miranda v. Arizona (1966), the Supreme
Court ruled that people must be informed of their rights when arrested, including the right to
remain silent and to an attorney, reinforcing the 5th Amendment’s protection against self-
incrimination. Similarly, Mapp v. Ohio (1961) applied the 4th Amendment’s protection from
unreasonable searches and seizures to the states through the exclusionary rule, meaning
evidence obtained illegally cannot be used in court.

Civil rights, on the other hand, are about what the government must do for people. These involve
protecting individuals from discrimination and ensuring equal treatment under the law, often
using the 14th Amendment’s Equal Protection Clause. For example, Brown v. Board of
Education (1954) ended racial segregation in public schools by ruling that “separate but equal”
was unconstitutional. Civil rights laws, like the Civil Rights Act of 1964, aim to stop
discrimination based on race, gender, or disability in public spaces, jobs, and education. So,
while civil liberties protect freedoms, civil rights promote fairness and equality by requiring
government intervention when people are being treated unfairly.

Understanding the difference between civil liberties and civil rights is key to grasping how the
Constitution functions in practice. Civil liberties are generally reactive, triggered when the
government oversteps its bounds and violates personal freedoms. Civil rights are more
proactive, ensuring that the government steps in to protect individuals and groups from unequal
treatment. This distinction is seen in how courts address different cases: Miranda and Mapp
focus on stopping government abuse, while Brown and the Voting Rights Act of 1965 focus on
correcting systemic inequalities. Together, these two areas of law shape the balance between
freedom and justice in American life.

Discriminatory Voting Rights Laws

Discriminatory voting laws were used historically to stop Black Americans and other minority
groups from voting, especially in the Southern United States. These included poll taxes, literacy
tests, white primaries, and the grandfather clause, which required voters to prove their
grandfathers had the right to vote—something impossible for most descendants of enslaved
people. Although the 15th Amendment guaranteed that voting rights could not be denied based
on race, these legal tricks worked around it, effectively disenfranchising millions. The Voting
Rights Act of 1965 helped fix this by requiring states with histories of discrimination to seek
federal approval (preclearance) before changing their voting laws. However, in Shelby County
v. Holder (2013), the Supreme Court removed the preclearance requirement, ruling that the
formula used to identify discriminatory states was outdated. This decision weakened federal
oversight and opened the door for new voting restrictions.

In modern times, voting discrimination has become more subtle but still harmful. Practices like
strict voter ID laws, racial gerrymandering, and at-large voting systems continue to suppress
minority votes. These policies can appear race-neutral on the surface but often have a
disproportionate impact on communities of color. For example, some laws require forms of
identification that poorer and minority voters are less likely to have. Additionally,
gerrymandering manipulates district lines to dilute minority voting strength. Cases like Bush v.
Gore (2000) and disputes over mail-in ballots or voter roll purging show that voting rules can
affect the outcome of elections, shifting political power and undermining democratic equality.

Studies like the one by Fresh (2018) have shown that while the Voting Rights Act did increase
voter turnout and representation, its effects were more modest than originally expected—
especially after parts of it were rolled back. The ruling in Shelby County didn’t just remove a
legal barrier; it encouraged a wave of new restrictions in several states. This shows how fragile
voting rights protections can be without strong legal safeguards. Continued enforcement,
awareness, and updated legislation are needed to ensure voting access for all. Even today, the
fight for equal voting rights remains a key part of civil rights in America.

Voting Rights Act (1965)

The Voting Rights Act of 1965 was a landmark piece of legislation passed during the Civil
Rights Movement to end racial discrimination in voting. It was designed to enforce the 15th
Amendment, which guarantees the right to vote regardless of race. The law banned literacy
tests, poll taxes, and other unfair tactics that had long been used to prevent Black Americans and
other minorities from voting. A critical part of the law, Section 5, required jurisdictions with a
history of racial discrimination—mostly in the South—to obtain federal approval (called
“preclearance”) before making any changes to their voting laws. This helped ensure that new
laws would not discriminate against minority voters and contributed to a major increase in voter
registration and participation among African Americans.

However, the effectiveness of the Voting Rights Act was significantly reduced by the Supreme
Court’s 2013 decision in Shelby County v. Holder. In that case, the Court struck down the
formula used to determine which areas required preclearance, arguing that it was outdated.
Although Section 5 was not completely eliminated, without a working formula, it could no
longer be enforced. After Shelby County, many states moved quickly to pass new voting laws—
such as strict voter ID requirements and cuts to early voting—which often disproportionately
impacted minority and low-income voters. This decision raised new concerns about voter
suppression and unequal access to the ballot box, especially in states with histories of racial
discrimination in elections.

Recent research has explored the impact of this rollback. For instance, Fresh (2018) found that
the Voting Rights Act had a modest but significant effect on minority political participation, and
that removing preclearance may have slowed progress. The case also reignited political and
scholarly debates about whether the federal government still needs strong oversight to protect
voting rights in modern times. While some argue the country has changed enough that such
protections are no longer needed, others point to ongoing issues like racial gerrymandering
and voter ID laws as evidence that discrimination still exists. Overall, the Voting Rights Act
remains one of the most important civil rights laws in U.S. history, but its full power has been
weakened, leaving the future of equal voting access uncertain.

Originalism vs. Living Constitution

Originalism and Living Constitution theory are two contrasting approaches to interpreting the
U.S. Constitution. Originalism argues that the Constitution should be understood based on the
intentions and meanings it held at the time it was written. Justices like Antonin Scalia strongly
supported this view, arguing that judges should not read new meanings into the text. Scalia, for
instance, argued that the 14th Amendment did not protect against gender or sexual orientation
discrimination because those issues were not considered in 1868, when the amendment was
ratified. Originalists contend that if society desires new rights or changes, they should be enacted
through legislation by elected officials, rather than interpreted by judges in the courts. This belief
emphasizes that the Constitution's meaning is fixed and should not be altered by judicial opinion
or contemporary views.

In contrast, the Living Constitution theory posits that the Constitution is a dynamic document
whose interpretation can evolve over time. Justices like Stephen Breyer supported this
perspective, emphasizing that while the fundamental values of the Constitution remain
unchanged, its application must adapt to modern circumstances. This allows the courts to
recognize new rights not explicitly mentioned in the original text. For example, in Griswold v.
Connecticut (1965), the Supreme Court ruled that a right to privacy existed, even though it was
not directly stated in the Constitution. Similarly, in Roe v. Wade (1973), the Court recognized a
woman’s right to choose an abortion, expanding constitutional protections in ways that were not
anticipated at the time the document was written. Supporters of this theory argue that it helps the
Constitution remain relevant and adaptable to new challenges in society.

However, the Living Constitution approach is controversial, as some critics argue that it gives
judges too much power to shape laws according to their personal beliefs, rather than adhering
strictly to the text of the Constitution. In Davis and Silver’s (2004) study on civil liberties, they
explored how Americans' views on government surveillance and safety from terrorism could lead
to sacrifices in civil liberties, which might parallel how judicial interpretations of the
Constitution shift with societal pressures. This highlights the tension between maintaining the
original meaning of constitutional rights and adapting them to the evolving needs of society.
While Living Constitution advocates argue that the Constitution must change with the times,
Originalists worry that this interpretation risks judicial overreach and undermines the document's
intended stability.

Judicial Activism vs. Judicial Restraint

Judicial activism and judicial restraint represent two opposing philosophies about the role
of courts in interpreting the law and shaping public policy. Judicial activism occurs when
courts take an active role in changing laws or creating new rights, often by overturning laws
passed by legislatures. Activist judges are willing to interpret the Constitution broadly to meet
the needs of contemporary society. For example, in Brown v. Board of Education (1954), the
Supreme Court actively overturned segregation laws, ruling that "separate but equal" violated the
Equal Protection Clause of the 14th Amendment. This decision was a landmark in the fight
for civil rights, as it actively dismantled racial segregation in public schools. Similarly, in Roe v.
Wade (1973), the Court ruled that a woman's right to privacy, which is implied by the
Constitution, included the right to an abortion. These cases highlight the role of judicial activism
in expanding rights and challenging long-standing laws that were deemed unjust by modern
standards.

On the other hand, judicial restraint is the belief that courts should avoid making major changes
to laws or policies and should defer to the decisions made by elected officials. Judges who
practice restraint believe that their role is to interpret the law, not to create new laws or rights.
This philosophy is rooted in respecting the democratic process and allowing elected
representatives to make policy decisions. For instance, in Plessy v. Ferguson (1896), the Court
practiced judicial restraint by upholding racial segregation laws, based on the belief that such
decisions should be made by state legislatures, not the federal courts. While this approach
respects the authority of elected officials, it has been criticized for allowing unjust laws to persist
for longer periods, such as the “separate but equal” doctrine that enforced segregation for
decades.

The debate between judicial activism and judicial restraint continues to be a significant issue in
U.S. legal and political discourse. Activist judges are often viewed as champions of civil rights
and social progress, willing to protect individual freedoms even when it means overturning the
will of lawmakers. On the other hand, judicial restraint supporters argue that courts should not
overstep their bounds and should leave major policy decisions to elected branches of
government. Studies like those from Davis and Silver (2004) and Canelo, Hansford, and
Nicholson (2018) explore public attitudes on these judicial philosophies, suggesting that
individuals’ political beliefs, age, and trust in government play roles in shaping how they view
the role of courts. The tension between these approaches reflects the ongoing struggle to define
the appropriate role of the judiciary in shaping society and its laws.