Civil Liberties & Rights

General Terms Conservative – government should be hands off Liberal – government free to get involved Conservative – associated with Republicans Liberal – associated with Democrats

Libertarians Liberal socially, conservative fiscally What is someone who is conservative socially, liberal fiscally?

Liberties v. Rights Civil Rights are government guarantees of political equality . Civil Liberties protect individuals from governmental interference. Civil Rights tend to apply to groups, whereas Civil Liberties are individual protections.

The Bill of Rights - Early Interpretation Early Supreme Court Seen as weak institution Cases are primarily about: distribution of power among branches of government relationship between state and federal government

Early Interpretation of the Bill of Rights Barron v. Baltimore (1833)

Early Interpretation of the Bill of Rights Bill of Rights does not apply to the States “ Congress shall make no law…” Barron v. Baltimore (1833)

Incorporation of the 14 th Amendment Incorporation The process through which the Supreme Court examines individual provisions of the Bill of Rights and applies them against state and local officials

Incorporation of the 14 th Amendment After the Civil War, 14th Amendment added to the Constitution 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

Incorporation of the 14 th Amendment Privileges or immunities of citizens Equal protection of the laws Due process of law Judges must determine what protections, if any, are provided by the phrases :

Incorporation of the 14 th Amendment First step towards incorporation: 5th Amendment “Takings” Clause From dmla.clan.lib.nv.us

Incorporation of the 14 th Amendment Lawyers ask Supreme Court to interpret the Due Process Clause in such a way as to protect individual rights against state and local governments Supreme Court refuses to incorporate a personal right until 1925 decision in Gitlow v. New York (1925)

1 st Amendment Rights 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.

1 st Amendment Rights Preferred Freedoms

1 st Amendment Rights: Freedom of Speech Free speech laws must balance individual liberties and societal interests

1 st Amendment Rights: Freedom of Speech “ Clear and Present Danger Test” From www.impawards.com

Gitlow v. New York (1925) " State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State .“ But the case does uphold the right to free speech Clear and Present Danger was established in Schenck v. U.S. (1919)

1 st Amendment Rights: Freedom of Speech Symbolic Speech When people take an action designed to communicate an idea

1 st Amendment Rights: Freedom of Speech Symbolic Speech can be granted 1 st Amendment protection Tinker v. Des Moines (1969) Texas v. Johnson (1989)

Live Oak High School, California Students removed from school after wearing t-shirts or bandanas that have American flags/colors on Cinco de Mayo

1 st Amendment Rights: Freedom of Speech Reasonable restrictions on assemblies: Time Place Manner Hate speech Fighting words When can restrictions be put on First Amendment rights?

1 st Amendment Rights: Freedom of Speech What about Commercial Speech?

Obscenity Roth v. United States (1957) From www.new-york-usa.com and www.picturesofengland.com

Obscenity Potter Stewart’s Standard "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

Obscenity Miller v. California (1973) Contemporary community standards Depicts or describes sexual conduct in a patently offensive way “ Lacks literary, artistic, political, or scientific value”

Obscenity in Music 2 Live Crew American Family Association: “Parental Advisory” not enough 1988 – store owner in Alabama arrested Broward County, FL declares album obscene Obscenity is confirmed by the U.S. District Court

Broward County Largely white retirees Store owners arrested for selling the album 3 members arrested after a live performance

U.S. Court of Appeals Dr. Henry Louis Gates Lyrics have roots in African-American “vernacular, games, and literary traditions” Members are acquitted in their trials Appeals Court side with 2 Live Crew 2 Live Crew later had a case go the Supreme Court Campbell v. Acuff-Rose Music, Inc Court sides with 2 Live Crew (fair use / parody)

Prior Restraint a governmental attempt to prevent certain information or viewpoints from being published

1 st Amendment Rights: Freedom of the Press Near v. Minnesota (1931) The Supreme Court rules against the use of prior restraint of publications that criticize the government

1 st Amendment Rights: Freedom of the Press Press interests versus governmental priorities Reporter’s privilege Shield Laws Reporters may be found in contempt of court if they refuse to cooperate with criminal investigations Judith Miller of the New York Times

1 st Amendment Rights: Freedom of Religion Establishment Clause “ Congress shall make no law respecting an establishment of religion….” Free Exercise Clause “… or prohibiting the free exercise thereof.”

2 Views of Establishment Clause Separationist Government must avoid contacts with religion, especially those that lead to government support or endorsement of religious activities Accommodationist Would permit the government to provide support for religion and associated activities

Freedom of Religion In the 1960s the Supreme Court adopts the Separationist Perspective Engel v. Vitale (1962) -School Prayer School District of Abington Township, Pennsylvania v. Schempp (1963) -School Bible readings

1 st Amendment Rights: Freedom of Religion How does the Supreme Court decide cases that involve the Establishment Clause? Lemon test: a standard developed in the 1971 case Lemon v. Kurtzman. The court must ask three questions: 1) Does the law or practice have a secular purpose? 2) Does the primary intent or effect of the law either advance or inhibit religion? 3) Does the law or practice create an excessive entanglement of government and religion?

Lemon test In addition to laws, why not apply to individual actions? Juashaunna Kelly Wardrobe in school How would this change school prayer? Is protection sometimes needed? The court is considering abandoning the Lemon test

Freedom of Religion Free Exercise Clause: key cases Minersville School District v. Gobitis (1940) West Virginia v. Barnette (1943) Employment Division of Oregon v. Smith (1990) -right to free exercise of religion does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’”

2 nd Amendment: Right to Bear Arms US v. Miller (1939) D.C. v. Heller (2008) “ A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”

U.S. V. Miller Supreme Court’s ruling Commerce Clause applied Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia A sawed-off barrel made the NFA applicable

D.C. V. Heller Issue pushed by former AG Ashcroft D.C. law banned handguns (unless retired police) Rifles & shotguns had to be registered & have a trigger lock Supreme Court struck down the law

Criminal Rights Exclusionary Rule (4 th Amendment) Under this rule, evidence that is obtained improperly by the police cannot be used to prosecute someone accused of a crime In 1970s and 1980s, the Supreme Court became more likely to make exceptions

Criminal Rights 5 th Amendment Self-Incrimination Double Jeopardy 6 th Amendment Right to an attorney Rights at trial

8 th Amendment: Cruel and Unusual Punishment Can it be considered “ cruel and unusual ” punishment? Capital Punishment

Some issues with capital punishment… Financial concerns Executing innocents Type of Execution Expertise of Executioner Hill v. McDonnough (2006) – state standards can be challenged Baze v. Rees (2007) – Supreme Court upholds Kentucky’s executions in a 7-2 vote

Medical Ethics American Medical Association Doctors should preserve life A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Medical Ethics Doctors can’t write prescriptions for executions Where are the drugs coming from??? State laws don’t require a doctor to undertake the execution State laws usually require a doctor to certify death Autopsies reveal “Anesthesia Awareness” could be a problem Florida: Jeb Bush bans executions after a botched attempt (reversed by Governor Crist) Ohio: Executions on hold after executioners failed to find a prisoner’s vein after two hours

The Right to Privacy The word “privacy” does not appear in the Constitution However, in 1965, Supreme Court determined that the right to privacy could be found in “penumbras and emanations” from other amendments

Abortion Rights Roe v. Wade (1973)

Roe v. Wade Justice Blackmun: “ The court has recognized that a right of personal privacy…does exist under the Constitution…This right of privacy, whether it be founded in the 14 th Amendment…or in the 9 th Amendment, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”

Private Sexual Conduct Key sexual privacy cases Griswold v. Connecticut (1965) Bowers v. Hardwick (1986) Lawrence v. Texas (2003)

A point to remember All of these rights were not actually guaranteed by the Constitution The Constitution only prohibited the national government form taking them away States could, and did, take them Doctrine of Incorporation has led the courts to guarantee these rights

Civil Liberties and National Security Some examples: The USA PATRIOT Act (2001) Military Commissions Act (2006)

Patriot act Senator Conyers: "We don't really read most of the bills. Do you know what that would entail if we read every bill that we passed?...[It would] slow down the legislative process”

Patriot Act Concerns Wiretaps don’t need a warrant Voicemail access granted with a warrant, not a wiretap order Law enforcement can “shop” for judges Access to library records Indefinite detention of accused terrorists

Military Commissions Act (2006) Detainees can have a military trial Cannot use a civilian attorney No habeas corpus* No jury – a 2/3 vote from the Commission Indefinite detention of “unlawful combatants” and “those awaiting determination” Includes “aliens” and US citizens

Civil Rights & Civil Liberties Civil Rights are government guarantees of political equality . Civil Liberties protect individuals from governmental interference. Further, Civil Rights tend to apply to groups, whereas Civil Liberties are individual protections.

The Ideal of Equality No equality in the Constitution .

The Ideal of Equality Equality of Condition The government takes direct action to reduce economic disparities between citizens Equality of Opportunity The government seeks to eliminate some discriminatory barriers to education, employment, and public accommodation

Civil Rights in Historical Context Women and African-Americans given few rights.

Civil Rights in Historical Context Dred Scott v. Sanford (1857)

Civil War and Change? Three constitutional amendments were aimed at providing protection for African Americans Thirteenth Amendment (1865) Fourteenth Amendment (1868) Fifteenth Amendment (1870)

The Civil War & Change? The effect of these Amendments were limited by a series of Supreme Court decisions. Civil Rights Cases (1883) Plessy v. Ferguson (1896) – “Separate but equal”

Civil Rights Act of 1875 “ all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude”

The Civil War & Change? Southern States also managed to circumvent the requirements of the 15 th Amendment. Poll Tax Literacy Test (+ Grandfather Clause) White Primaries Terror and Intimidation (has this really ended?)

Gerrymandering Draw districts in a way to keep minorities low in numbers throughout numerous districts Or, draw districts so that as many minorities as possible can be lumped into one district

The Ideal of Equality The drive for civil rights focused on Equal access to voting Prohibition of certain forms of “categorical discrimination”

The Ideal of Equality Categorical discrimination Exclusion, by reason of race, gender, or disability, from public education, employment, housing and public accommodations

Sowing the Seeds of Change In 1944, the Supreme Court declared that race was a suspect classification that demanded strict scrutiny (Smith v. Allwright). Brown v. Board of Education of Topeka (1954) – overturned “separate but equal” in public schools.

African Americans and Civil Rights 1963 March on Washington 250,000 participants 1964 Civil Rights Act passed 1965 Voting Rights Act enacted MLK – I Have A Dream

African-Americans and Civil Rights De Jure Segregation Segregation and discrimination mandated by state and local laws De Facto Segregation Segregation and discrimination enforced through informal and semi-formal norms and practices

Affirmative Action Affirmative Action Remedial preferences provided to people in university admissions, employment, and government contracts Affirmative Action is called reverse discrimination by opponents

Affirmative Action in the Higher Education How does affirmative action in universities differ from other preferential criteria in admissions? University of California v. Bakke (1978) was one of the earliest challenges to affirmative action in the university

Problems with Affirmative ACtion Many question it’s success -many benefitting from AA policies are from higher socio-economic backgrounds -many from lower socio-economic backgrounds do not succeed at higher levels of education Solutions???

Affirmative Action 49 percent of white respondents think that affirmative action has gone too far, while 79 percent of minority respondents think that it is still needed.

Affirmative Racial Gerrymandering Following the 1990 census, the Department of Justice pressed southern legislatures to draw as many districts as possible in which minorities would constitute a majority of the electorate Affirmative Racial Gerrymandering in North Carolina

Women and Civil Rights Women’s rights groups attempted to use the Civil War Amendments to expand their rights.

Women and Civil Rights The Supreme Court’s 1873 Bradwell v. Illinois decision upheld a statute prohibiting women from becoming licensed attorneys in Illinois The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. -Justice Joseph P. Bradley

Women and Civil Rights 15th Amendment did not bar denial of the vote on the grounds of gender Women had to fight for universal suffrage

Women and Civil Rights [1] The right of citizens in the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. [2] Congress shall have power to enforce this article by appropriate legislation The Nineteenth Amendment

Women and Civil Rights In the latter half of the Twentieth Century Women’s Rights Groups made significant gains in many areas . . . *Discrimination – Craig v. Boren *Abortion – Roe v. Wade

Contemporary Civil Rights Issues Many other groups have fought for civil rights over the last 30 years: people with disabilities, homosexuals, and Native Americans

Contemporary Civil Rights Issues The Disabled Americans with Disabilities Act (1990). Gays and Lesbians Bowers v. Hardwick (1986). Commonwealth v. Wasson (KY Supreme Court, 1992). Lawrence v. Texas (2003).

Recent Issues Civil Liberties Treatment of Sex offenders Civil Rights Arizona immigration law Orders immigrants to carry documents Police question individuals when there is suspicion they are in the country illegally Arizona ban on “ethnic studies classes”

“ Public school pupils should be taught to treat and value each other as individuals and not be taught to resent or hate other races or classes of people” Prohibits the teaching of classes that promote “the overthrow of the United States government,” “resentment toward a race or class of people,” “are designed primarily for pupils of a particular ethnic group” or “advocate ethnic solidarity instead of the treatment of pupils as individuals.”

Civil Liberties & Rights

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Civil Liberties & Rights