Dr Simon Boucher ~ bouches@tcd.ie

1. Government and Politics of the USA Week 3 TT: Civil Liberties, Civil Rights, and Race Dr Simon Boucher ~ bouches@tcd.ie

2. Required reading… McKay chapter 15: “Regulating Morality: Civil rights, liberties and the conscience issues” LGW chapter 4: “The Constitution and the Individual: The Bill of Rights, Civil Liberties and Civil Rights” Singh chapter 24: “Race and Multiculturalism” MHW chapter 10: “Affirmative Action- the Continuing Drama” Optional reading… Stephen Steinberg – “Race and Ethnicity in the United States: Issues and Debates” (2000) Robert Post and Michael Rogin – “Race and Representation: Affirmative Action” (1998) Additional resources… www.naacp.org Readings on Race, Civil Liberties / Rights

3. DISCUSS ESSAY RESULTS Hillary term essay feedback UPDATE

4. CIVIL LIBERTIES About guaranteeingindividual freedom Protection FROM government CIVIL RIGHTS About guaranteeing equality Protection BY government Distinguishing civil liberties and civil rights In most countries, “civil rights” and “civil liberties” are used interchangeably – not in the US….

5. Following the Philadelphia Convention, anti-Federalists argued against the Constitution on the grounds that the strong national government was a threat to individual rights This appealed to Americans’ concern for tyranny and the importance of individualism Several states demanded amendment before they would ratify Madison provided a set of rights to pre-empt another convention based on Virginia’s Declaration of Rights and state amendment recommendations Background to the Bill of Rights

6. Freedom of speech Freedom of the press Freedom of religion Right to bear arms Freedom of assembly Freedom of petition Content of the Bill of Rights The Bill of Rights protects citizens against their government… Substantive Liberties Procedural Liberties Defined a “private sphere of personal liberty, free of governmental restriction”

7. Limits to the Bill of Rights However the Bill of Rights faced certain limitations No right is absolute… the only promise is that the SC will give “strict scrutiny” to any action taken that limits or abridge a right Initially the protection afforded via the Bill of Rights was limited, only applying to the federal government

8. Initially US citizens were considered to have dual citizenship – confirmed in Barron v Baltimore (1833) Therefore BoR only applied to federal government – rights not “nationalised” After Civil War, 14th amendment imposed BoR on states, providing for “a single national citizenship” – civil liberties couldn’t vary dramatically from state to state But SC ignored the 14th for over 100 years – maintaining the “Barron v Baltimore” status quo Nationalising Bill of Rights KEY CONTROVERSY IN CIVIL LIBERTIES: Is the Bill of Rights equally applicable to federal and state government?

9. Over time individual rights were gradually “incorporated” under the 14th amendment - nationalising their effect 1960s – “the 2nd Constitutional Revolution” – in a series of cases the newly liberal SC actively applied the 14th amendment to remaining rights, incorporating them into the Constitution, Nationalising Bill of Rights KEY CONTROVERSY IN CIVIL LIBERTIES: Is the Bill of Rights equally applicable to federal and state government?

10. History indicates US civil liberties are NOT carved in stone. They are fragile, and subject to constant judicial interpretation Individual liberties endure intense scrutiny – e.g. the right to privacy (abortion) Civil liberties need to be vigilantly safeguarded, especially at times of war Remember: US courts are political institutions, and judges are politicians… Just as a liberal SC nationalised the BoR, a conservative one may denationalise certain rights… Civil liberties today The Bill of Rights is now fully “nationalised”. However…

11. Passed (opportunistically?) after 9/11 Expanded the authority of law enforcement agencies for the purpose of fighting terrorism Widely criticized for weakening protections of civil liberties, such as… Authorization of indefinite detentions of immigrants “Sneak and peek” searches without permission or knowledge Expanded powers for searching telephone, email and financial records without a court order The Act has had several legal challenges, and Federal courts have ruled several provisions unconstitutional The Act was renewed by the Republican Congress without major changes in March 06 The Patriot Act

12. Hillary: voted for the Patriot Act in 2001 and to re-authorise it in 2006, but has criticised many of its measures Obama: wasn’t in the Senate in 2001; worked to change parts of the Law but also voted to re-authorise it McCain: voted for the Patriot Act in 2001, to expand it in 2005, and to re-authorise it in 2006 The candidates and the Patriot Act

13. Government and Politics of the USA Week 3 TT: Race and Civil Rights Dr Simon Boucher ~ bouches@tcd.ie

14. E pluribus unum

15. African Americans - the only ethnic group to come to America involuntarily Traders brought West African slaves due to labour shortages amongst the colonists Slavery controversial from the beginning – a major point of contention during the Constitutional Convention – almost outlawed “Great Compromise” – Congress could not prohibit the importation of slaves before 1808. Slaves worth 3/5th of a person for representation purposes Early history of the race issue

16. The slavery issue remained controversial between “slave” and “free” states up till 1860s Dredd Scott v Sandford (1857) set scene for civil war… Established that slaves were property Established that no black could be a US citizen, even if they were born and lived in a non-slave state Following the Civil War (1861-65) Constitutional amendments overturned Dredd Scott 13th (1865) abolished slavery 14th (1868) established birthright citizenship 15th (1870) – prohibited states from denying citizens the right to vote because of their race or previous slavery Dredd Scott

17. Civil rights became part of the constitution with the adoption of the 14th amendment in 1868 Civil rights are obligations imposed on the government by the equal protection of the laws clauseof the 14th amendment, to take positive action to protect citizens from the illegal actions of other citizens or government agencies The 14th amendment guarantees equal citizenship and protects citizens from discrimination The 14th Amendment “No state shall make or enforce any law which shall… Deny to any person within its jurisdiction the equal protection of the laws”

18. Despite the clarity of the 14th amendment, the SC was not willing to enforce it The SC proceeded to declare the 1875 Civil Rights Act unconstitutional In the infamous Plessy v Ferguson (1896) the SC went further, upholding a Louisiana statute that required segregation of the races on public transport. Whites and blacks were considered “separate but equal” Southern states evolved into dual societies via the imposition of “Jim Crow Laws” The establishment resists…

19. State and local laws enacted in the Southern states and enforced between 1876 and 1965 Excluded blacks from full social participation – mandated "separate but equal" status. In reality, this led to treatment and facilities that were almost always inferior to those provided for whites Typically required that public schools, public places and public transport have separate buildings, toilets, and restaurants for whites and blacks Jim Crow was repealed by via “Brown v Board” in 1954 and the Civil Rights Acts of the 1960s “Jim Crow Laws”

20. Alabama "All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races." Georgia "All persons licensed to conduct a restaurant, shall serve either white people exclusively or colored people exclusively and shall not sell to the two races within the same room or serve the two races anywhere under the same license." Mississippi "Any person...who shall be guilty of printing, publishing or circulating printed, typewritten or written matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and Negroes, shall be guilty of a misdemeanor and subject to fine" “Jim Crow Laws”

21. World War 2 helped reinforce the perception among blacks that conditions in the South were unacceptable Mobilised many African American males Induced mass migration of blacks to the war factories of the North The SC became stricter about the “equal” facilities which states had to provide under the “separate but equal” rule - but the rule’s underlying logic wasn’t queried NAACP – by 1940s was actively supporting lawsuits aimed at discriminatory practices Turning of the Tide

22. Breakthrough SC case Involved 8-year-old girl required to attend an all-black school 5 miles away rather than an all-white school closer to home Invoking the equal protection clause of the 14th Amendment – SC decided that separate facilities in education were “inherently unequal” First application of 14th amendment since 1868 – the end of “separate but equal” In a related decision in 1955 the SC ordered Southern Schools to “desegregate with all deliberate speed” Provoked huge protests in the South, clear efforts made to obstruct implementing the law Brown v Board (1954)

23. Altered the US Constitutional framework in 2 respects: States no longer have the power to use race as a basis of discrimination in law The Federal government had the power (and eventually the obligation) to intervene with strict regulatory policies against the discriminatory actions of state or local government Brown v Board (1954)

24. Brown v Board

25. Initially, most states refused to cooperate until sued, and developed many ingenious schemes to delay obedience In 1955 the SC ordered all local authorities to “make a prompt and reasonable start” and district courts to “proceed with all deliberative speed” towards de-segregation; still for 10 years progress was agonisingly slow It became obvious that the goal of “equal protection” required positive, or “affirmative” action and that legislation was required Ongoing resistance

26. you do not take somebody hobbled by chains for years, bring him to a start line, and then say ‘you are free to compete with others’ “Freedom is not enough”

27. Laws 1964 Civil Rights Act- power of the purse –denied federal monies to organisations, individuals or programmes practicing discrimination 1965 Voting Rights Act– made illegal all laws denying blacks equal access to the ballot Affirmative Action LBJ argued that outlawing discrimination wouldn’t result in equal opportunities – proposed the “Philadelphia Plan” – the first effort of “affirmative action” LBJ left office before it could be implemented “Freedom is not enough”

28. Involves… Positive discrimination in which race is taken into account, but for compensatory action, rather than mistreatment Compensatory action to favour members of the disadvantaged group who themselves may not have suffered discrimination Quotas may be, but are not necessarily, involved in AA policies In 1968 Nixon unexpectedly implemented and expanded LBJ’s Philadelphia Plan. However his motives were questionable, and he soon proceeded to attack AA quotas AA extended in the 1970s, dividing civil rights activists – was “reverse discrimination” just? Affirmative action “Compensatory action to overcome the consequences of past discrimination”

29. Many believe that society continues to routinely positively discriminate in favour of white (males) –WASPs continue to economically and politically dominate America This course is maintained by denying minorities the chance to maximise their potential - particularly in schools They argue the goal of AA is not to privilege minorities over the majority nor is it simply reverse racism, but to create a colour-blind society - which in the short term requires programmes which temporarily privilege minorities …AA simply “helps minorities find their voice” Arguments for affirmative action

30. How can AA create a colour-blind society when it classifies people by the colour of their skin? AA heightens peoples’ awareness of their differences, actually aggravating racism AA is incompatible with America’s traditional values of capitalism, freedom and choice – businesses should be allowed hire and fire purely on the basis of merit For every place held for a minority, an equally or better qualified person is overlooked People who benefit from AA are usually already privileged members of the minority groups –not the truly under-privileged. Ironically these individuals are usually considerably more privileged that poor whites Arguments against affirmative action

31. Since the mid 1970s the SC has progressively weakened AA in a series of decisions, particularly stating that “any rigid numerical quota” was suspect Clinton - “mend it, don’t end it” - all AA policies were reviewed; most were found fair, but had to serve a “compelling state interest” A majority of blacks and whites favour programmes that help blacks succeed, but both groups oppose quotas Key to future AA - ensure those who benefit are truly, demonstrably oppressed… How does one judge between the oppressed and non-oppressed? How does one measure different levels of oppression? Affirmative action – is there a solution? Can class and race be combined as an AA tool?

32. Busing School curriculum Re-districting Other controversial race-related issues

33. In 1960, 85% of Americans were white… In 2000, 69% of Americans were white… By 2050 whites will be a minority A closing thought on race… “The browning of America”

34. Since the 1960s the success of the African American civil rights movement has encouraged other groups to fight for their civil rights Under Title 7 of the 1964 Civil Rights Act, any group can try and convert their grievances into a question of rights – by establishing that their membership in a group is an unreasonable basis for discrimination “Universalisation” has become the new frontier of the civil rights struggle; the 1964 Act has been used as a basis for defending civil rights based on gender, disability, sexual orientation, age and religion Ironically the conservative Burger Court established gender as a major civil rights issue by applying the 1964 Act to women “Universalising” civil rights Universalising civil rights reflects the importance of “equality of opportunity” in US society

35. Government and Politics of the USA Week 3 TT: Race and 2008 Dr Simon Boucher ~ bouches@tcd.ie

36. The voting demographics Bill Clinton and race Geraldine Ferraro and race Reverend Jeremiah Wright and race Obama – the Philadelphia speech Race and the 2008 election

37. Obama routinely wins 80% + of black voters Hillary dominates amongst Hispanic and Asian voters (65-70% in many states) The white vote has split from state to state and according to gender 2008 voting demographics Race is clearly a major factor in deciding this election

38. Bill was originally considered “the first black President” Unusually for a former President, has occasionally been used as an attack dog by Hillary’s campaign During the SC Primary (and after), was considered to have made a series of implicitly racist statements Reaction to Bill and outcome for Hillary very negative Bill Clinton and race in 2008

39. 1988 Democratic VP nominee Member of Hillary’s Finance Committee March 2008 – claimed “if Obama was a white man, he wouldn’t be in this position” Comment criticised by many, though some defended her; Ferraro remained defiant but resigned her campaign role Geraldine Ferraro and race in 2008

40. Obama’s former family pastor. Married him, baptised his children – an “uncle figure” Now retired from ministry In March 2008 a variety of incendiary videos appeared on TV and the internet, including “anti-American” and “anti-white” racist statements The Jeremiah Wright controversy

41. Obama had long avoided the issue of race, attempting to be a “colour-blind” candidate He initially avoided the Wright controversy – but it became a major threat to his campaign Delivered “Landmark” high-risk More Perfect Union speech in Philadelphia Condemned Wright’s statements, but explored reasons for such extreme rhetoric in historical context Declared he would neither disown Wright nor his racist grandmother Speech considered a masterpiece, so far polls appear steady Obama’s Philadelphia speech