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Ch. 5: Civil Liberties

Ch. 5: Civil Liberties. Unit VI: 5-15%. I. Civil Liberties and Civil Rights. A. Sources of Protection. The Constitution No ex post facto laws or bills of attainder, habeas corpus Bill of Rights, and subsequent amendments Guarantee of rights and liberties Legislation

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Ch. 5: Civil Liberties

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  1. Ch. 5: Civil Liberties Unit VI: 5-15%

  2. I. Civil Liberties and Civil Rights A. Sources of Protection • The Constitution • No ex post facto laws or bills of attainder, habeas corpus • Bill of Rights, and subsequent amendments • Guarantee of rights and liberties • Legislation • Civil Rights Acts of 1964 and 1968, Voting Rights Act of 1965 • Court decisions • Brown v. Board, Roe v. Wade • State constitutions

  3. B. Limits of Government Nature of Civil Liberties: • Not absolute: they may be exercised so long as they do not infringe on the rights of others • Balancing test: courts balance individual rights and liberties with society’s need for order and stability To whom are they guaranteed? • Most rights and liberties are granted to all in the U.S. regardless of citizenship • Exceptions: non-citizens may not vote, serve on juries, stay in the U.S. unconditionally, or hold public office or certain jobs

  4. C. Impact of Federalism Bill of Rights were intended as restrictions on the national government, not the States (Barron v. Baltimore, 1833) 14th Amendment modified the Constitution • Due Process Clause means that no State can deny to any person basic rights and liberties. This clause bans states from denying life, liberty, or property without due process of law. Freedom of speech, for example, is a “liberty,” therefore states cannot deny freedom of speech without due process of law. • Protections set out in the Bill of Rights are also covered by the 14th Amendment and so apply against States (“process of incorporation”) • The “total incorporation” view would apply all of the provisions of the Bill of Rts. to the states. It argues for nationalization of the BOR. • The “selective incorporation” view would apply only some of these provisions, and would do so on a gradual, case-by-case basis over time. • Gitlow v. NY, 1925: • Court upheld conviction of Gitlow (a communist), but added that states may not deny freedom of speech and press, protected by the 14th A. Due Process Clause

  5. 3) Selective Incorporation Subsequent cases nationalized the following parts of the BOR on a selective incorporation basis: • Assembly (1st) • Petition (1st) • Religion (1st) • Right to bear arms (2nd) (McDonald v. Chicago, 2009) • Search and seizure protections (4th) • Self-incrimination (5th) • Double jeopardy (5th) • Right to counsel (implied by 5th – Miranda; stated in 6th) • Right to bring witnesses (6th) • Right to confront witnesses (6th) • Protection against cruel and unusual punishment (8th) Which rights must states uphold? The Palko test (Palko v. CT, 1937) tells us that any right that is so important that liberty would not exist without it must be upheld by states. All provisions of the BOR except Amendments 3, 7, and 10 as well as grand jury requirement of the 5th & excessive bail in 8th have been nationalized,

  6. 4) 9th Amendment • Declares there are rights beyond those expressed in the Constitution (the “enumerated” rights) • Examples of “other” rights protected by the 9th Amendment: • Privacy (Griswold v CT, 1965) • Travel • Freedom of Association (Boy Scouts of America v. Dale, 2000 – Boy Scouts can ban homosexuals from being scout leaders via Amendment 1 and 9) • Homosexual conduct (Lawrence v. TX, 2003: using the right of privacy, this decision struck down a TX law that banned sodomy. It reversed the decision of Bowers v. Hardwick, 1986, which upheld a Georgia law banning sodomy.)

  7. II. The 1st Amendment: Free Expression • Guaranteed by the 1st and 14th Amendments for spoken, written, and other forms of communication to ensure open public debate of ideas, especially unpopular views • “freedom for the thought that we hate” (Holmes) • Belief is most protected, action can be most restricted, but speech falls somewhere in between

  8. A. Historic Tests used by courts to determine if speech is protected • Bad tendency doctrine (restrictive test) • State legislatures, not the courts, should generally determine when speech should be limited – when it might lead to harm/illegal action. • Clear and present danger doctrine. • Schenck v. U.S., 1919. Case involved a man who was urging men to avoid the draft. Upheld, however: Speech can be suppressed only if there is an imminent threat to society (fire in a crowded theater). • Preferred position doctrine. • Free speech is of utmost importance and should thus occupy a “preferred position” above other values; gov should virtually never restrict it.

  9. B. Non-protected speech • Libel and slander (NY Times v. Sullivan, 1968) • Obscenity (Miller v. CA, 1973) • Commercial speech is subjected to more regulation than political speech • Sedition: • Alien and Sedition Acts (1798): sedition could be criticism of the government • Smith Act, 1940: banned advocacy of overthrowing the government • Dennis v. U.S., 1951- upheld Smith Act • Yates v. US, 1957 – advocacy alone does not create a “clear & present danger,” but urging concrete action does

  10. C. Protected Speech • Prior Restraint: Blocking speech before it is given (or published) • unconstitutional • In the Pentagon Papers case, the court refused to impose prior restraint • Clarity: • Least-restrictive means: • Centrality of political speech: given special protection because of its importance in a democracy. (Are corporations “people?”) • McCain-Feingold 2002 (BCRA) placed restrictions on electioneering communications (upheld:McConnell v. FEC, 2003) • Overturned (parts) by Citizens United v. FEC, 2010 • Symbolic speech • Between speech and action. Generally protected. • U.S. v. O’Brien, 1968: Texas v. Johnson, 1989 • Tinker v. Des Moines, 1969: U.S. v. Eichman, 1990

  11. D. Freedom of the Press • Right of access: • “sunshine laws” • Freedom of Information Act (1966) • Electronic FIA (1996) • Executive privilege: • U.S. v. Nixon, 1974: • Shield laws: • Defamation: NY Times v. Sullivan • Obscenity: Miller set 3-part test: • Community standards must be violated • State obscenity laws must be violated • Material must lack serious literary, artistic, or political value. • Student press: Hazelwood v. Kuhlmeier, 1988

  12. 10. Regulation of Electronic Media • Radio and TV must comply with FCC regulations to get license • Fairness Doctrine • FCC restricts use of obscene words • Communications Decency Act (CDA) 1997, struck down by Court • Ashcroft v. ACLU, 2002:

  13. E. Freedom of Assembly and Petition Freedom of Petition • Right to petition the gov for redress of grievances • Constitutional justification for lobbying • Also provides constitutional basis for freedom of association (2 types): • Political association (parties, interest groups, and PACs) • Personal association (private clubs) Boy Scouts v. Dale, 2000 • Limited by the Hatch Act • Limited by restrictions on campaign contributions, but Court struck down limits on spending in Buckley v. Valeo, 1976 and on contributions in Citizens United v. FEC, 2010 Freedom of Assembly • Government may regulate the time, place, and manner of assemblies • Rules must be specific, neutral, and equitably enforced • Applies to public, not private, places

  14. III. Freedom of Religion Protected by the 1st and 14th Amendments: Establishment Clause Free Exercise Clause Article VI bans religious tests and oaths as a qualification to hold public office

  15. Separation of Church and State The Establishment Clause. Basic meaning: Government may not establish an official religion. Separationist view: (Jefferson’s “wall of separation.” Freedom FROM religion. Accommodationist View: Endorsement view Non-preferentialist view: • Most challenges to the Establishment Clause deal with religion and education • Pierce v. Society of Sisters, 1925 • Everson v. Board of Ed, 1947 (NJ School Bus Case)

  16. Religion and Education • Release Time • Zorach v. Clauson, 1952 • Prayers and the Bible • Engel v. Vitale, 1962 • Basis: the government must “maintain strict neutrality, neither aiding nor opposing religion” • Abbington v. Schempp, 1963 • Epperson v. Arkansas, 1968 • Stone v. Graham, 1980 • Wallace v. Jaffree, 1985 • Lee v. Weisman, 1992 • Santa Fe School District v. Doe, 2000

  17. D. Student Religious Groups • E. Aid to Parochial Schools • States give aid to private schools for transportation, books, standardized testing, lab equipment, etc. • Reasoning: • Schools enroll large numbers of students • Double burden of parents financially • Schools devote time to secular subjects • (Zelman v. Simmons-Harris, 2002) • Equal Access Act of 1984 • Westside Community Schools v. Mergens, 1990

  18. F. The Lemon Test • Court uses to determine the legitimacy of aid (Lemon v. Kurtzman, 1971) • Purpose must be secular • It may neither advance nor inhibit religion • It must avoid “excessive entanglement of government and religion” G. Other Establishment Clause Cases: • Seasonal displays cannot endorse Christian doctrine, but can include religious objects if non-religious objects are featured • Prayer in Congress (Marsh v. Chambers)

  19. Free Exercise Clause Guarantees each person the right to believe whatever they choose in matters of religion Does not give the right to violate laws, offend public morals, or threaten the health, safety, or welfare of the community

  20. Religious Practices that have been restricted: Religious practices that have been permitted: • Reynolds v. U.S., 1879 • Jacobson v. Massachusetts, 1905 • Welsh v. U.S., 1970 • U.S. v. Lee, 1982 • Oregon v. Smith, 1990 • West VA Board of Ed v. Barnette, 1943 • Wisconsin v. Yoder, 1972 • Church of Lukumi Babalu Aye v. Hialeah, 1993

  21. IV. Due Process of Law I. Meaning of Due Process Substantive vs. Procedural Due Process • 2 Clauses: • 5th: • 14th: • The government must act fairly and in accordance with established rules. Substantive DP: Procedural DP: Rochinv. CA, 1952 Pierce v. Society of Sisters, 1925

  22. 4th Amendment: Searches and Seizures • Wiretapping: • FISA Court • Patriot Act 2002 SEARCH CASES: • Florida v. J.L., 2000 • Minnesota v. Carter, 1999 • California v. Greenwood, 1988 • Michigan v. Tyler, 1978 A. Police have no right to search for or seize evidence or people unless they have a proper warrant obtained with probable cause B. Arrests (“seizures”) • Illinois v. Wardlow, 2000 C. Searches : 1. Automobile Exception • Michigan v. Sitz, 1990 • California v. Acevedo, 1991 • Wyoming v. Houghton, 1999

  23. D. Exclusionary Rule Evidence gained illegally cannot be used against a person in court CASES: • Weeks v. U.S., 1914 • Mapp v. Ohio, 1961 Exceptions: • “Inevitable discovery” (Nix v. Williams, 1984 • “good faith rule” (U.S. v. Leon, 1984 and Arizona v. Evans, 1995) • “honest mistakes” (Maryland v. Garrison, 1987) • Critics claim that it lets criminals “off the hook” on technicalities. They ask why society should pay for the misconduct of a few police officers. • Supporters claim that it discourages police misconduct

  24. E. Rights of the Accused 1. Writ of Habeas Corpus 2. Bills of Attainder 3. Ex Post Facto Laws

  25. F. 5th Amendment I. Grand Jury 2. Double Jeopardy • In federal cases, the Constitution provides for a grand jury: • The 5th Amendment

  26. 3. Self-Incrimination • The 5th also guarantees against self-incrimination • The Miranda Rule states that police must inform a person of their rights before being questioned (Miranda v. Arizona, 1966) • 4. Witnesses:

  27. 5. 5th Amendment: Eminent Domain • Property rights vs. public welfare • States MAY impose limits on property rights: • States may exercise police powers to protect public health, safety, welfare, and morals • States may exercise right of eminent domain: • Kelo v. City of New London, 2005

  28. G. The 6th Amendment 1. Speedy and Public Trial 2. Trial by Jury • In most cases, trials must be within 100 days of arrest • Right of a public trial belongs to the defendant, not the media • Guaranteed in criminal cases (though most cases are disposed of by plea bargaining) • Guaranteed in civil cases worth more than $20 (7th Amendment)

  29. 3. Right to Counsel • CASES: • Gideon v. Wainwright, 1963 • Escobedo v. Illinois, 1964

  30. H. The 8th Amendment I. Bail and Preventative Detention 2. Cruel and Unusual Punishment: Capital Punishment • Is Constitutional, but certain methods are banned • 1972: Furman v. Georgia • 1976: Gregg v. Georgia, the Court has ruled that the death penalty can only be applied in cases resulting in the death of the victim, and those in which mitigating circumstances apply • 2-step process • Ewing v. CA, 2003: 3-strikes law • Justification for bail: • 1984 Preventative Detention Congressional Law:

  31. Death Penalty Cases: • Furman v. Georgia, 1972 • Gregg v. Georgia, 1976 • Coker v. Georgia, 1977 • Roberts v. Louisiana, 1977 • Atkins v. Virginia, 2002 • Ring v. Arizona, 2002 • Roper v. Simmons, 2005

  32. CH. 6: CIVIL RIGHTS

  33. I. Struggle for Equal Rights: Blacks • Dred Scott decision, 1857, denied the right of Scott to sue-slaves were not citizens. • Civil War Amendments: 13, 14, 15-to protect blacks against state governments • 5th & 14th prohibit government from discriminating, but what about protection from private acts? • 13th has been broadly interpreted to prohibit the “badges” of slavery, Commerce Clause, power to tax and spend • Plessy v. Ferguson, 1896 • Barriers to de jure segregation: use of the courts-Brown v. Board, 1954 • Civil disobedience in 1950s-60s, violent demonstrations 1960s • Civil Rights Act of 1964: • Title II bans discrimination in places of public accommodation on the basis of race, color, national origin, or religion. Based upon Congress’ power to regulate interstate commerce. • Title VII: prohibits employment discrimination (sex & race), required federal contractors to adopt affirmative action, enforced by EEOC • Civil Rights Act of 1968 (Fair Housing Act)

  34. H. Voting Rights Act of 1965 15th A. banned voting discrimination, but states found ways: white primary, poll tax, literacy tests, grandfather clause. Remedies: • Banned literacy tests • Allowed federal officials to register voters and ensure they could vote, to count ballots • Amendments require states to include ballots in other languages • States with a history of voting discrimination must clear w/ Justice any changes in voting practices (SC, TX 2012) • Resulted in huge increases in black turnout, black elected officials, and voter power

  35. II. Struggle for Equal Rights: Women • First Wave: Seneca Falls (1848), 19th Amendment (1920) • 2nd Wave: 1960-present • The Feminine Mystique, Betty Friedan (1963) • NOW, Emily’s List and other women’s groups • Legislation: • Equal Pay Act of 1963 • Civil Rights Act of 1964, Title VII • ERA • Title IX of Education Act of 1972 • Cases: (Reasonableness Test) • Reed v. Reed, 1971 • Roe v. Wade, 1973 • Electoral Success: 1992-Year of the Woman: many women elected to Congress • Rise of women representatives in Congress, on Court, as constituent voting bloc

  36. III. Equal Protection Under the Law • Discrimination • Classification/treating groups differently usually on ethnic or racial lines • Some is inevitable (age requirements, income tax) • Issue: are such differences “reasonable” • 14th Amendment (1868) Equal Protection Clause bans the states from unreasonable discrimination • Court tests: • Rational basis test: discrimination is constitutional if it has a reasonable relationship to a broader purpose of gov • Cannot be used if a case involves a suspect class, an almost-suspect class, or a fundamental right • strict scrutiny: Suspect classifications test • Suspect class: a class that has historically suffered unequal treatment on the basis of race or national origin • Discrimination is subject to strict scrutiny: there must be a compelling purpose for the discrimination to be constitutional

  37. 3. Fundamental Rights Test • Those which are explicitly stated in the Constitution, and implied, such as: travel, political association, privacy Abortion cases: • Roe v. Wade, 1973: based on right to privacy implied in the Bill of Rights (Griswold v. CT, 1965) • Webster v. Reproductive Health Services, 1989 • Planned Parenthood v. Casey, 1992 • Gonzales v. Carhart, 2007 Voting: • Bush v. Gore, 2000 Same-sex marriage: • Six states allow it (MA, CT, IA, VT, NH, NY), and D.C. • DOMA (1996); Obama (2011) DOJ will no longer defend (14th) Gay rights: • Lawrence v. TX, 2003

  38. Affirmative Action • Strict Scrutiny cases: • UC Regents v. Bakke, 1978, • Gratz v. Bollinger, 2003, • Grutter v. Bollinger, 2003; • CA Prop 209 • Racial gerrymandering banned: • Shaw v. Reno; Miller v. Johnson • Reasonableness Test: • For quasi-suspect class: sex • Not quite as high as for race • Discriminatory laws must be reasonable, not arbitrary, and bear some relation to gov. objective

  39. IV: Struggle for Equal Rights-Other Groups A. For Hispanics: • Key issues: • Bilingualism - Lau v. Nichols, 1974: • States must now provide bilingual ballots for areas with a high concentration of non-English speakers • Immigration • Electoral politics: W. and Jeb Bush had Hispanic vote, but so did Obama B. For Asians: • Key Issues: • Immigration restriction in the past • Internment, Korematsu v. U.S. 1944; reparations • “reverse discrimination” in college admissions • “model minority” C. Age/Disability: • Age Discrimination in Employment Act, 1967: • ADA, 1990: bans job and access to facilities discrimination if “reasonable accommodation” can be made

  40. V. Citizenship A. Methods of Acquisition: • Birth Jus soli • All born in the U.S., regardless of parentage, are citizens as per 14th A. Jus sanguinis • Anyone born to U.S. citizens living overseas is a citizen • Possibility of dual citizenship • Naturalization: individual or collective B. Methods of losing: • Expatriation • Denaturalization

  41. C. Aliens • Types: • Resident • Nonresident • Illegal • Enemy • Refugee • Rights: mostly the same as citizens with some exceptions: • Suffrage • Serving on juries • Holding certain jobs (teachers, police officers) • Unconditionally staying in U.S. D. Entry into U.S. • Current law allows ~675,000 to be legally admitted each year • Based on preference system: • Relatives in U.S. • Needed job skills • “diversity exceptions” for Europeans • Political refugees (~100,000) allowed above 675,000

  42. E. Simpson-Mazzoli Bill of 1986: Provisions for illegal aliens: • Amnesty for those here before 1982 • Fines for employers who knowingly hire illegal workers • Certain number of aliens allowed to enter each year as temporary farm workers F. Sources of Immigration: • Pre-1880: primarily Northern and Western Europe • 1880-1920: primarily from Southern and Eastern Europe • 1924: National Origins Act-set a nation-by-nation quota system that gave large quotas to N. and W. European nations, but smaller ones to S. and E. Europe and Asia • 1965: National Origins Act repealed; replaced with preference system • Most immigrants now from Latin America and Asia

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