Civil Liberties and Civil Rights

1. Civil Liberties and Civil Rights Unit V

2. Difference between a Civil Liberty and a Civil Right • Civil liberties – guaranteed freedoms • Freedom of speech, press, assembly, religion, petition • Civil rights – guaranteed protections • Freedom from discrimination, prejudice, inequality, injustice

3. Original Constitutional Guarantees • Writ of Habeas Corpus (Article I, Section 9) • Informed of charges • No Bills of Attainder (Article I, Section 9) • Due process • No Ex Post Facto (Article I, Section 9) • After the fact • Trial By Jury (Article III, Section 2) • Treason (Article III, Section 3) • Levying war or aiding the enemy; two witnesses to crime • Privileges and Immunities (Article IV, Section 2) • Guaranteed in all states • No Religious Test (Article VI) • No declaration of religion or religious oath to hold public office

4. First Amendment Establishment and free exercise of religion, speech, press, assembly, petition Second Amendment Bear arms Third Amendment Quartering soldiers Fourth Amendment Search and seizures Fifth Amendment Eminent domain, self-incrimination, double jeopardy Sixth Amendment Right to attorney Seventh Amendment Trial by jury in civil cases Eighth Amendment Cruel and unusual punishment Ninth Amendment Un-enumerated rights Tenth Amendment Reserve powers Bill of Rights

5. Fourteenth Amendment • Citizenship Clause • Privileges and Immunities Clause • Due Process Clause • Equal Protection Clause • INCORPORATION/Selective Incorporation • Barron v. Baltimore (1833) • Bill of Rights only applied to federal government • Applying the Bill of Rights to the states through the Due Process Clause • Almost all of the Bill of Rights have been incorporated

6. Civil LibertiesFirst Amendment – Establishment Clause • “Congress shall make no law respecting an establishment of religion…” • Prohibits government from establishing any official religion or sponsoring any religion(s) over others • Everson v. Board of Education (1947) • Incorporated Establishment Clause to states • Engel v. Vitale (1962) • School-sanctioned public prayer unconstitutional • LEMON V. KURTZMAN • LEMON TEST: a law must… • Primarily secular purpose • Neither aid nor inhibit religion • Not create excessive government/religion entanglements

7. Civil LibertiesFirst Amendment – Free Exercise Clause • “Congress shall make no law…prohibiting the free exercise thereof.” • Individuals may believe in any religion or in no religion • Religious belief protected; religious practices restricted • Incorporated in a 1940 decision • Reynolds v. United States (1879) • Prohibits polygamy despite Mormon practice • Wisconsin v. Yoder (1972) • Amish may not be required to send children to school beyond 8th grade • Church of the Lukumi Babalu Aye v. City of Hialeah (1993) • Animal sacrifice for Santeria is protected

8. Civil LibertiesFirst Amendment - Speech • Pure speech is verbal • Symbolic speech is actions and symbols • Alien and Sedition Acts (1798); Espionage Act (1917); Sedition Act (1918) • Time, place, ormanner/free speech zones • Slander • Schenck v. United States (1919) • Clear and present danger • Gitlow v. New York(1925) • Incorporated free speech to the states • Tinker v. Des Moines(1969) • Black armbands during Vietnam Conflict protected • Brandenburg v. Ohio(1969) • Inflammatory speech protected as long as no imminent danger • Miller v. California(1973) • OBSCENITY TEST: defined obscenity as • Themes appeal to indecent sexual desires • Clearly offensive sexual behavior prohibited by law • Lacks serious literary, artistic, political, or scientific value • Texas v. Johnson(1989) • Flag burning protected as symbolic speech • Reno v. ACLU (1997) • Regulating internet speech unconstitutional – Communications Decency Act of 1996

9. Civil LibertiesFirst Amendment – Press • Newspapers, magazines, radio, television, internet • Libel • Near v. Minnesota • PRIOR RESTRAINT • Incorporated free press to the states • New York Times v. Sullivan • Criticism of public officials protected • New York Times v. United States • Pentagon Papers • Hazelwood School District v. Kuhlmeier • Student newspapers may be censored for school safety

10. Civil LibertiesFirst Amendment – Assembly • “…right of the people peacefully to assemble…” • Dejonge v. Oregon (1937) • Incorporated free assembly to states • Freedom of association • NAACP v. Alabama (1958) • Requirement of membership lists unconstitutional • Boy Scouts of America v. Dale (2000) • Private organization may limit membership based on expressive guidelines and despite anti-discrimination laws

11. Civil LibertiesFirst Amendment - Petition • “…petition the Government for a redress of grievances.” • House of Representatives’ gag rule • Edwards v. South Carolina (1963) • incorporated to states

12. Civil LibertiesSecond Amendment • “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” • District of Columbia v. Heller (2008) • Firearm possession unrelated to militia protected • Overturned handgun ban • McDonald v. Chicago (2010) • Incorporated to the states

13. Civil LibertiesThird Amendment • “No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.”

14. Civil LibertiesFourth 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.” • Unreasonable search and seizure • Wolf v. Colorado (1949) • Incorporated to states • Mapp v. Ohio (1961) • EXCLUSIONARY RULE • Nix v. Williams • Discovery rule • United States v. Leon • Good faith exception

15. Civil LibertiesFifth Amendment – Rights of Accused • Grand Juries • Presented evidence to either indict or not • Closed deliberations; no attorney present • Not incorporated • Double Jeopardy • May not be tried twice for same offense • Does not protect from other sovereign courts (state courts, federal courts, foreign courts) • Incorporated – Benton v. Maryland • Self-Incrimination • One may not be compelled to testify against oneself • Miranda v. Arizona(1966) • Right to remain silent, right to an attorney, provision of attorney

16. Civil LibertiesFifth Amendment – Due Process • “…nor be deprived of life, liberty, or property, without due process of law…” • Substantive due process • Determination of fairness and constitutionality of laws and policies • Procedural due process • Laws enforced according to proper and legal procedures

17. Civil LibertiesFifth Amendment – Property Rights • Eminent Domain • Private property may be confiscated by the government solely for public use and through just compensation • Incorporated through Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897)

18. Civil LibertiesSixth Amendment – Trial and Counsel • Speedy and Public Trial • Trial by Impartial Jury • Notice of Accusations • Confront Witnesses • Attain Witness Testimony • Right to Counsel • GIDEON V. WAINWRIGHT(1963) • Right to attorney if cannot afford one • Incorporated to states • Escobedo v. Illinois(1964) • Right to attorney during police interrogations

19. Civil LibertiesSeventh Amendment – Civil Trial • Right to trial in civil cases • If in excess of $20

20. Civil LibertiesEighth Amendment – Cruel and Unusual Punishment • Protection against excessive bail and fines • No cruel and unusual punishment • Incorporated in 1962 • Furman v. Georgia(1972) • Death penalty unconstitutional based on arbitrary sentencing • Gregg v. Georgia(1976) • Death penalty constitutional based on circumstances of case

21. Civil LibertiesNinth Amendment – Un-enumerated Rights • Protection and guarantee of rights not specifically granted by the Constitution • Right to Privacy • The Ninth Amendment has been used, along with other amendments, as legal guarantee of privacy • GRISWOLD V. CONNECTICUT(1965) • Prohibition of contraceptives violated marital privacy • ROE V. WADE(1973) • Prohibition of abortion violated due process • Guaranteed private choice of a woman

22. Civil Rights • Suspect classification OR suspect class • A group determined to be subject or have been subjected to discrimination • Race, ethnicity

23. Civil RightsThirteenth Amendment - Slavery • Slavery abolished in 1865 • First of the Civil War Amendments

24. Civil RightsFourteenth Amendment • Second of the Civil War Amendments (1868) • Intended to guarantee the citizenship of freed blacks and free blacks • Due Process Clause used for incorporation • Equal Protection Clause used to guarantee civil rights, prevent discrimination

25. Civil RightsFifteenth Amendment – Voting Rights (Race, Color, Servitude) • Third of Civil War Amendments (1870)

26. Civil RightsNineteenth Amendment – Voting (Gender) • Guaranteed suffrage for women in 1920

27. Civil RightsTwenty-Fourth Amendment – Poll Taxes • Expands guarantee of right to vote by prohibiting poll taxes

28. Civil RightsTwenty-Sixth Amendment – Voting Rights (Age) • Guarantees the right to vote for citizens 18 years and older • Response to domestic turmoil resulting from Vietnam Conflict

29. Civil RightsCivil Rights Movement (Blacks) • Civil War Amendments (13th, 14th, 15th) • Black codes and Jim Crow laws • PLESSY V. FERGUSON (1896) • “separate but equal” • Executive Order 8802 (1941) • no discrimination in government offices and defense industry • Executive Order 9981 (1948) • Desegregation of the military • BROWN V. BOARD OF EDUCATION(1954) • Desegregation of schools; overturns Plessy v. Ferguson • Civil Rights Act of 1964 • Prohibited discrimination in employment and public accommodations • 24th Amendment (1964) • Voting Rights Act of 1965 • Prohibited literacy tests, grandfather clauses, white primaries

30. Civil RightsCivil Rights Movement (Women) • 19th Amendment (1920) • Equal Employment Opportunity Act (1972) • Prohibits gender discrimination in hiring, firing, salary, promotion, conditions • Equal Rights Amendment (1972) • 35 states ratified, short of the 38 required

31. Civil RightsCivil Rights Movement (Hispanics) • Hernandez v. Texas (1954) • Mexican-American citizens (and other racial groups) entitled to equal protection per 14th Amendment

32. Civil RightsNatives • Indian Removal Act (1830) • Cherokee Nation v. Georgia (1831) • Native nations not a foreign state therefore subject to federal jurisdiction • Worcester v. Georgia (1832) • Native lands are sovereign in respect to state laws • Indian Citizenship Act (1924) • Indian Self-Determination and Education Act (1975)

33. Civil RightsImmigrants • Chinese Exclusion Act (1882) • Emergency Quota Act (1921) and National Origins Act (1924) • Quotas on southern and eastern European and non-European immigrants • Excluded Central and South America • Immigration and Nationality Act (1965) • Ended immigration quotas

34. Civil RightsAsians • Chinese Exclusion Act (1882) • Restricted chinese immigration; severely limited chance at U.S. citizenship • Korematsu v. United States (1944) • Japanese internment constitutional during time of war

35. Civil RightsLGBT • Bowers v. Hardwick (1986) • Georgia law prohibiting homosexual relations (sodomy laws) constitutional • Romer v. Evans (1996) • Colorado law banning protection of homosexuals ruled unconstitutional • LAWRENCE V. TEXAS(2003) • Overturned Bowers v. Hardwick • Sodomy laws unconstitutional • Defense of Marriage Act (DOMA) (1996) • Federal government recognizes marriage as legal union between male and female • Some states recognize same-sex marriage; some outlaw it; some recognize same-sex civil unions • Don’t Ask, Don’t Tell • Policy enacted in the military allowing discharges for homosexuality • Military could not ask sexual orientation • Repealed in 2010

36. Civil RightsDisabled • Education for All Handicapped Children Act (1975) • Americans with Disabilities Act (ADA) (1990) • Mandates accommodations for public facilities • Prohibits discrimination of the disabled in hiring, accommodations

37. Civil RightsElderly • Age Discrimination in Employment Act (1967) • Prevent non-hiring of elderly • Ended compulsory retirement

38. Affirmative Action • Policies designed to makeup for racial or gender-based discrimination of the past • REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE(1978) • Reverse discrimination • Quota systems are unconstitutional; affirmative action programs constitutional • Grutter v. Bollinger (2003) • special consideration of race for admission is constitutional • Gratz v. Bollinger (2003) upheld quota system as unconstitutional for Michigan’s points system