Chapter 3

1. Chapter 3 Civil Liberties and Civil Rights

2. Introduction • The framers of the Constitution wanted not only a strong and effective government but also one that would guard the rights of a free people. • Civil liberty: a legally protected freedom to act or not to act, and/or to be free from unwarranted governmental intrusion • Civil rights: participatory rights, which are citizens’ legal rights to participate in society and politics on an equal footing with others, and the assurance that people are not to be penalized on criteria that society deem irrelevant to policy making • Civil rights include the rights protected by the three Civil War amendments, especially the equal protection clause of the Fourteenth Amendment, along with subsequent laws and court cases.

3. The Bill of Rights: Securing the Blessings of Liberty • Applying the Bill of Right to the States • Individual liberties are protected in the Bill of Rights. • At first the Bill of Rights did not apply to the states. • Through a process of incorporation, the Supreme Court used the Fourteenth Amendment as a vehicle for making the Bill of Rights applicable to the states. • The Fragility of Civil Liberties • Civil liberties have meant more in some years than in others. • Americans do not all agree on the rights that the Constitution should protect. • Maintenance of civil liberties rests on rules and institutions—as well as on the attitudes and values of the people.

4. Content of the Bill of Rights Consisting of barely 450 words, the Bill of Rights (Amendments I through X) was intended to remedy a defect that critics found in the Constitution of 1787. In September 1789, Congress proposed twelve amendments for approval by the states. As the eleventh state (three-fourths of fourteen), Virginia’s ratification in December 1791 made the Bill of Rights officially part of the Constitution. The remaining three states—Connecticut, Georgia, and Massachusetts—did not ratify until the 150th anniversary of the Bill of Rights in 1941. One amendment was never ratified. It dealt with the apportionment of the house of representatives and is now obsolete. The other amendment was not ratified until 1992—more than two hundred years after it was proposed! The Twenty-seventh Amendment—called the “lost amendment”—delays any increase in congressional salaries until a congressional election has intervened.

5. Content of the Bill of Rights

6. Freedoms of Speech, of the Press, and of Assembly • Introduction • Freedoms of speech, press, and assembly are found in the First Amendment. • These liberties all involve forms of expression. • The Value of Free Expression • It is necessary to the political process. • It allows the dominant opinions of the day to be challenged. • It aids self-development. • However, free expression may not always produce the wisest policies and can threaten social and political stability.

7. The Tests of Freedom • Examples of free speech suppression included the Sedition Act of 1798 and instances during the Civil War, World War I, and the Red Scare that followed WWI. • The Supreme Court’s “clear and present danger” test prohibited speech only when it would result in imminent harmful consequences (Holmes/Brandeis) • The “bad tendency” test, used for a short time, would prohibit speech even if it did not result in immediate harm. • Gags • The Court is unlikely to approve a prior restraint—the censorship of something before it is said or published. • The Court will rarely approve a pretrial gag on newspaper and television reports about a crime, even if the gag would protect the right to a fair trial.

8. Obscenity and Libel • The Court regards obscenity as unprotected speech because of the public view that it is deleterious. • The Court has applied the “contemporary community standards” test (Miller v. California) to define obscenity. • Libel, which involves character defamation, is not generally protected by the First Amendment. • In New York Times v. Sullivan, the Court stated that premeditated malice must be proved before libel exists. • Some argue that the threat of libel makes journalists wary and keeps them form doing a thorough job, while others believe it keeps journalists honest and acts as a check on their power.

9. Freedom of Assembly • Symbolic speech, such as a sit-in, has been held as unconstitutional when the mode of expression (not the idea) is considered harmful. • The Court has upheld the right of individuals to deface the flag as a symbol of protest and barred Congress from criminalizing flag burning.

10. Religious Freedom • Religion and the Constitution • The United States is very diverse religiously. • The free exercise clause preserves a sphere of religious practice free from governmental interference. • The establishment clause keeps the government from becoming a tool that one religious group can use against others. • Financial aid to sectarian schools has posed a problem. • The court has allowed some public aid to sectarian schools—if they pass certain requirements under the Lemon Test. • Prayer in public schools has also been contested. • Engel v. Vitale outlawed mandatory prayer in public schools. • The Court has been firm in its opposition to state sponsored religious activities even though this stance creates controversy.

11. Religious Observances in Official Settings • Outside of schools, the Court has been more willing to allow religious practices in official settings. • The Court has placed some limits on official observances of religious holidays, thus not permitting any implication of endorsement of a particular religion.

12. Free Exercise of Religion • Problems occur when application of a law is counter to a religious tenet (e.g. the Amish and their opposition to compulsory education). • When actions based on religious belief run afoul of criminal law, the latter prevails (e.g. the American Indian use of peyote leading to job loss and denial of unemployment compensation)

13. Fundamentals of American Criminal Justice • A Government of Laws • The American criminal justice system requires that legal guilt be proven and that proper criminal procedure be followed. • Conflict often occurs when attempting to balance the value of individual fairness and crime control. • Presumption of Innocence • Presumption of innocence lays the burden of proving guilt on the government. • The prosecution must also demonstrate mens rea, or criminal intent, allowing insanity as a defense. • Notice of Charges • A suspect is entitled to know precisely what charges the state intends to level or prove, so he or she can present a defense. • Ex post facto laws and bills of attainder are forbidden by the Constitution.

14. Limits on Searches and Arrests • In many searches and in some arrests, the Fourth Amendment requires a judge-issued warrant based on probable cause. • The exclusionary rule disallows evidence gained as a result of violating the suspect’s rights.

15. Protection Against Self-Incrimination • The Fifth Amendment prohibits the use of interrogations to coerce confessions and protects suspects from having to testify at their own trials. • Miranda v. Arizona ruled to exclude all confessions in which the police failed to inform the suspect of his/her Miranda rights. • Many suspects decide to accept a plea bargain, during which they confess in order to obtain a lighter sentence.

16. Assistance of Counsel • Although the Sixth Amendment guarantees the right to legal counsel, until the 1970s defendants who could not afford a lawyer often went unrepresented. • Today, the court provides free counsel when a defendant cannot afford to hire an attorney. • Public defenders and less expensive lawyers often have heavy caseloads, resulting in a large number of plea bargains.

17. Limits on Punishment • The Eighth Amendment prohibits “cruel and unusual punishment.” • Although the Court does not consider the death penalty unconstitutional, states vary widely in how they use it. • Many argue that the death penalty is racially discriminatory and that the process is flawed.

18. Executions by State, 1976-2010 Note: Data are current through June 3, 2010

19. Executions by State, 1976-2010 (continued)

20. A Right to Privacy • Introduction • The Ninth Amendment provides the basis for civil liberties not specifically mentioned in the Constitution, such as the right to privacy. • The Abortion Cases • Roe v. Wade recognized a woman’s right to abortion in the first and second trimesters, allowing states to ban abortions only in the third trimester. • Since Roe, attempts to limit abortion failed until Webster v. Reproductive Health Services gave states greater power to restrict abortion without overturning Roe. • Controversy continues regarding the government’s right to rule on people’s choices in regards to sexual relations. • When it comes to housing and public accommodation practices, as well as the right to adopt or have custody of children, discrimination based on sexual orientation is still legal in some areas.

21. Equality: A Concept in Dispute • Policies promoting equality of opportunity have removed barriers of discrimination that existed in the past. • Policies promoting equality of condition have reduced or eliminated handicaps caused by lingering effects of past discrimination. • Policies promoting equality of result, such as affirmative action programs, have tried to guarantee equal footing.

22. Racial Discrimination • The Legacy: Slavery, Civil War, and Reconstruction • The Civil War ended slavery (with the Thirteenth Amendment) and ushered in several civil rights acts during the Reconstruction. • Plessy v. Ferguson legitimized segregation through the separate-but-equal doctrine. • Formalizing Third-Class Citizenship • Every aspect of life in the South (and many aspects of life in the North) became racially segregated by law. • Southern politicians systematically excluded African Americans from the political process. • African Americans were shortchanged in the delivery of public services, especially education.

23. Chronology of Major Civil Rights Decisions, Laws, Amendments The drive for political equality for all Americans has been a long process and remains incomplete. Congressional statutes and Supreme Court decisions since the Civil War have been important in achieving equality.

24. The Counter Attack • The NAACP and its legal defense fund pressed for desegregation through the courts. • Brown v. Board of Education of Topeka overturned Plessy and the separate but equal doctrine.

25. Putting Brown to Work: The Law and Politics of Integration • Several factors hampered implementation of Brown. • Some federal judges in the South opposed integration. • Local school boards opposed Brown. • Many feared a hostile reaction from whites. • The Court lacked initial support from Congress, the White House, and much of the legal community. • The Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965 furthered integration.

26. The Continuing Effects of Brown • Until the 1970s, the Court focused on eliminating de jure segregation (segregation by law). • After 1971, the Court focused on de facto (unofficial) segregation. • During this time the racial composition of schools reflected decades of residential de facto segregation. Local officials now had the affirmative duty of redrawing attendance zones and busing pupils from one part of town to another to compensate for economic inequities and private discrimination during the integration process. • To this day social segregation, especially in terms of residence, remains a factor in many areas of the nation.

27. Affirmative Action • No firm consensus exists on the merits of affirmative action. • Regents of the University of California v. Bakke outlawed racial quotas but permitted the use of race as one factor in admissions. • The legal limits to affirmative action remain a subject of debate.

28. Voting Rights • The Voting Rights Act • The Voting Rights Act of 1965 is the most important voting legislation ever enacted by Congress. • Clearance in advance by the attorney general, or the U.S. District Court for D.C., is required prior to any change in a locale’s electoral system. • This protects African American voting power from being weakened. • The 1982 Amendment established that an existing electoral arrangement that has a racially discriminatory effect also violates the law. • African American voter registration has increased dramatically since 1965.

29. Sex Discrimination • The Legacy • In the nineteenth century, a wife had no legal existence apart form her husband. • The suffrage movement resulted in the Nineteenth Amendment giving women the right to vote in 1920. • Gender to the Forefront • Sex discrimination became an issue in the 1960s and 1970s as more women increased their education and career opportunities. • Several laws were passed outlawing sexual discrimination. • Comparable worth in wage scales would mandate equal pay for jobs of equal value and require congressional or state action.

30. Other Americans and Civil Rights • American Indians • Although few in number, American Indians suffer high rates of sickness, poverty, illiteracy, and unemployment. • American Indians have been granted more rights and greater control over their own affairs, thus reflecting a heightened ethnic pride and political awareness. • Latinos • Latinos are the nation’s fastest-growing minority. • Where necessary, ballots must be printed in Spanish and bilingual education must be provided. • Latinos have become an important political force.

31. Other Americans and Civil Rights • Immigrants • Legal immigration has been limited since 1921. • Illegal aliens are a target for discrimination and violence. • The Immigration Reform and Control Act gave legal residence to many illegal aliens and required employers to verify legal status, but it has resulted, also, in discrimination against Latinos and Asians. • Disabled Americans • Disabled Americans are the nation’s largest minority group (with a population of over 43 million). • The Americans with Disabilities Act (1990) bans discrimination against the disabled in employment situations and places of public accommodation.

32. Rights and Liberties in the Constitutional Framework • Civil rights and liberties are part of the framework of American constitutional government. • Much of what government and people have done in recent decades has been driven by an intolerance of inequality.