wilson ch18 19

Civil Liberties and Civil RightsCivil Liberties and Civil Rights

Wilson Chapters 18 and 19

What’s the Difference?What’s the Difference?

• Civil Liberties involve basic freedoms (speech and religion) and are protected by amendment 1

• Civil Rights involve protection against discriminatory treatment and are protected by Amendment 5 (national govt) and 14 (states)

Whose looking out for you?Whose looking out for you?

• Sources of protection:• Constitution (ex post facto, bills of attainder

and habeas corpus are banned)• Bill of Rights• Legislation: Civil Rights Acts of ‘64 and ‘68,

Voting Rights Act of 1965• Court Decisions: Brown v. Board and Roe v.

Wade• State Constitutions

Federalism and Your RightsFederalism and Your Rights

• Bill of Rights only truly affected the national government and did not include protections against state government (Barron v. Baltimore, 1833)

Federalism and Your RightsFederalism and Your Rights

• Modifying effect of the 14th Amendment• The due process clause has been used to apply

most of the provisions of the Bill of Rights to the States

• The “total incorporation” view would apply all of the provisions of the Bill of Rights to the states. Nationalize the Bill of Rights.

• The “selective incorporation” view would only apply some provisions in a case-by-case basis

What does the Court Say?What does the Court Say?

• Gitlow v. New York• Gitlow, a communist, was convicted of criminal

anarchy in a state court

• Supreme Court- upheld conviction, BUT added that states may not deny freedom of speech and press

• Palko V Connecticut• Any right that is so important that liberty would not

exist without it, must be upheld by states

• Griswold v Connecticut 1965• Privacy protected by Amendment #9

What does the Court Say?What does the Court Say?

1. Assembly2. Petition3. Religion4. Search and Seizure5. Self-Incrimination

6. Double Jeopardy7. Right to Counsel8. Right to bring

witness9. Right to confront

witness10.Cruel and unusual

Parts of Bill of Rights have been federalized on a selective incorporation basis:

The First Amendment and YouThe First Amendment and You

I. FREEDOM OF RELIGIONEstablishment clause: government may not establish an

official religion• Accomodationist view: Government should bend a bit

and allow some church/state blending (nativity scenes on city property)

• Separationist view: No blending (wall of separation)

• Endorsement view:no govt. practice that endorses religion (no 10 commandments in court house)

• Nonpreferentialist view: cannot favor one, but can support religion in general


I. FREEDOM OF RELIGION Continued• Lemon v Kurtzman- established 3-part test to

determine if a statute or practice violates the establishment clause

1. Nonsecular (religious) purpose2. Advances or inhibits religion3. Excessive entanglement with government

If any of these are present, the statute is unconstitutional


I. FREEDOM OF RELIGION Continued• Key rulings:

1. Everson v. Board - establishment clause to states2. Engle v Vitale: no state sponsored prayer in school3. Abbington v Schempp: no devotional Bible-reading

in public school4. Unconstitutional to require teaching creationism5. State laws may not prohibit teaching of evolution6. Unconstitutional to require posting of 10

commandments in schools7. Released time for students is constitutional


I. FREEDOM OF RELIGION Continued• Key rulings:

8. Tax exemptions for churches are constitutional as they are for other nonprofit institutions

9. Christmas displays are constitutional as long as they include some secular content

10. State aid to parochial schools: texts, lunches, bus11. Impermissible aid to parochial schools: field trips,

teacher salaries, counseling, remedial instruction12. Zelman v. Simmons-Harris: public money can be

used to send disadvantaged students to religious schools in school voucher program


FREEDOM OF RELIGION-Free Exercise Clause• Freedom of worship• Problem of contradiction between establishment

clause and free exercise clause• Distinction between belief (always allowed) and

practice (not always allowed)• History of placing burden of proof on either state

or religion to provide compelling evidence of need to restrain or allow practice (currently burden is on religion)


FREEDOM OF RELIGION-Free Exercise Clause

Restricted Religious practices• Polygamy• Not vaccinating children prior to entering school• Not paying Social Security taxes (Amish)• Wearing a Jewish skullcap in military

Permitted Practices• Not saluting the flag• Not sending children to school past 8th grade (Amish)


FREEDOM OF SPEECH• Belief is most protected, action can be most

restricted, but speech falls somewhere in between

• Both the freedom to give and hear speech


FREEDOM OF SPEECH- Court tests• Bad Tendency doctrine

1. Limit when it might lead to harm2. State leg. Should determine

• Clear and Present danger 1. Schenck v. US2. Speech can be suppressed only if there is an

imminent threat to society

• Preferred position doctrine1. Free speech is of the utmost importance


FREEDOM OF SPEECH- Court tests• Prior restraint

1. Blocking speech before it is given (unconstitutional)

2. Pentagon Papers case

• Vagueness1. Speech restrictions must be clear

• Least drastic means test1. Laws cannot restrict speech if there are other

means to handle the problem


FREEDOM OF SPEECH• Symbolic speech

• Somewhere between speech and action, generally protected

• Flag burning- ok• Draft card burning- not ok

• Sedition• Prohibited when imminent danger of overthrow

The First Amendment and YouThe First Amendment and YouFREEDOM OF THE PRESS1. Right of Access- Freedom of Info Act (allows public

access to govt. files)2. Executive Privilege3. Gag orders - to ensure fair trial4. Shield Laws- protect reporters from revealing sources

(many states have passed)5. Defamation- not protected (libel/written word vs.

Slander/ spoken word); public figures must prove malice

6. Obscenity- must violate community standards7. Student press- not a public forum, so it can be restricted


FREEDOM OF ASSEMBLY AND PETITION

• Freedom of Petition• Right to petition the government for redress of grievances• Justifies lobbying• Protects freedom of association (political and personal ) -

Hatch Act restricts political activities of federal employees

• Freedom of Assembly• Govt may regulate time, place and manner• May require police permits• Reluctance to issue prior restraint• Applies to public places, not private places

EQUAL RIGHTSEQUAL RIGHTS

WOMEN:• Suffrage: 19th Amendment 1920• Legislation:1. Equal Pay Act 19632. Title VII of Civil Rights of 1964: prohibited

employment discrimination based on sex3. Title IX of Education Act of 1972: prohibited

gender discrimination on federally subsidized education programs, including athletics


WOMEN:• Litigation

1. Reed v. Reed 1971: Court ruled against arbitrary gender-based discrimination as violation of 14th amendments equal protection clause

2. Roe v. Wade 1973

• Electoral success1. 1992 Year of the Woman2. Gender gap - more women voted in 19963. Soccer moms4. 2 female SC justices5. Interest groups: NOW, Emily’s list


AFRICAN- AMERICANS• Dred Scott Decision in 1857 denied the right of Scott, a

slave, to sue (slaves were not citizens)• Civil War Amendments (13, 14, 15) to protect blacks

against the state govts.• Jim Crow laws (Plessy v Ferguson)• Resistance against de jure segregation ( Brown v. Board)• Increased political success• Economic success has lagged behind• Backlash against affirmative action


HISPANICS: Key Issues• Bilingualism- states must now provide

bilingual ballots• Immigration• Electoral Politics “sleeping giant”

EQUAL PROTECTION UNDER THE LAW


Discrimination = classification/treating groups differently

14th Amendment’s equal protection clause bans states from unreasonable discrimination



COURT TESTS ON DISCRIMINATION:• RATIONAL BASIS TEST- discrimination is

permissible if it has a reasonable relationship to proper purpose of govt. (polygamy, prohibit felons from teaching)

• SUSPECT CLASSIFICATION TESTSuspect class has historically received unequal treatment (discrimination receives strict scrutiny)



COURT TESTS ON DISCRIMINATION:3. Quasi-suspect classification test (sex based)

States must show that discrimination is based on important govt. function

4. Fundamental Rights test• Strict scrutiny to laws that deny fundamental rights

(in Constitution- explicitly or implicitly)• Abortion - Roe v Wade• Voting- Bush v. Gore• Right to Die• Right to Procreate• Right to Marry (Defense of Marriage Act)

BARRIERS TO VOTINGBARRIERS TO VOTING

15th Amendment banned voting discrimination based upon race, southern states found ways around that:

1. Poll tax (banned by 24th Amendment)

2. Literacy test (banned by voting rights act of 1965)

3. Grandfather clause (unconstitutional)

BARRIERS TO VOTINGBARRIERS TO VOTING

VOTING RIGHTS ACT of 1965 (Provisions)

1. States w/ history of problems must clear w/ Justice Dept. any changes

2. Suspended literacy tests

3. Empowered fed officials to register voters

4. Empowered fed officials to count ballots

5. Ballots in languages other than English

EFFECTS

Increase in turnout, more blacks elected

PRIVATE DISCRIMINATION AND THE FEDERAL RESPONSE


5th and 14th amendment prohibits govt. from discriminating, but what prevents private individuals or businesses from discriminating?

1. 13th amendment prohibits relics of slavery2. Commerce clause3. Power to tax and spend (attach strings to

federal grants and contracts)



FEDERAL RESPONSES:1. Civil Rights Act 1866- prohibits discrimination

in private contracts2. Civil Rights Act of 1964- Title II bans

discrimination in places of public accommodation (Congress’ Commerce power); racial preferences to remedy not required, but allowed

3. Civil Rights Act of 1968 (Fair Housing)4. Age Discrimination in Employment5. Americans with Disabilities Act

CITIZENSHIPCITIZENSHIP

• Methods of Acquisition:• Jus Soil (all born in US)• Jus Sanguinis (born to US citizen living overseas)• Naturalization

• Methods of losing citizenship• Expatriation (renounce citizenship)• Denaturalization (strip cit. From naturalized citizen who

acquired cit. Through fraud)

• Aliens (citizens of another nation who are living in the US)

• Current law allows 675,000 legal admittance each year

Life, Liberty, Property and Due Process of Law


• Govt. Strives to protect individual property rights• Two types of due process:

• Procedural (govt. must use fair procedures to deny life, liberty and property)

• Observe Bill of Rights• Provide Reasonable notice• Provide Chance to be heard• Illegal searches violate procedural due process

• Substantive (Laws that enable denying life, liberty and property must be fair)

• Ex. Ban on all abortions in a state would violate substantive due process



• Distinguishing Procedural vs. Substantive:• Police Strip Searches (P)• Compulsory vaccination laws (S)• Minimum Wage laws (S)• Firing a city employee without a hearing (P)

GOVERNMENT AND CRIMEGOVERNMENT AND CRIME

1. Arrests can be made with warrant (probable cause - 4th amendment) or without (emergency)

2. Searches made with a warrant (probable cause and specific) or without (under certain circumstances)

3. Wiretapping only with warrant4. Exclusionary rule- illegally obtained evidence cannot be

used in court; Argument that it lets crooks “off the hook”5. No self incrimination (5th amendment)6. Police questioning (cannot force; Miranda warnings- right

to remain silent…)7. Habeas corpus- must be brought to court to determine if

fairly held

GOVERNMENT AND CRIMEGOVERNMENT AND CRIME

RIGHTS OF THE ACCUSED1. Right to Counsel (Gideon v Wainright)2. No Excessive bail (8th Amendment)3. Speedy and Public Trial4. Grand jury indictment (required in fed but not state

cases)5. Trial by jury (guaranteed in criminal cases though most

cases are plea bargained)6. Witness7. No Cruel and Unusual punishment (8th Amend)8. No Double Jeopardy (except crime that violates state

and federal law)

And finally…THE PATRIOT ACTAnd finally…THE PATRIOT ACT

FBI AND CIA have greater powers to

1. Wiretap phones

2. Monitor email

3. Survey financial and student records

4. Conduct searches w/o prior notice

Federal government can deport/detain noncitizens w/o judicial appeal

Weakens protection of the 4th Amendment

wilson ch18 19

Economy & Finance