Civil Rights and Civil Liberties. Aren t They the Same? 7/7/2013. Guarantees of Liberties not in the Bill of Rights.

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1 Civil Rights and Civil Liberties Day 6 PSCI 2000 Aren t They the Same? Civil Liberties: Individual freedoms guaranteed to the people primarily by the Bill of Rights Freedoms given to the nation Civil Rights: citizenship rights guaranteed to the people and protected by the government Generally based on class characteristics and assure that all citizens are treated equally and fairly before the law ADA, VRA, CRA Guarantees of Liberties not in the Bill of Rights Habeas Corpus A writ designed to challenge an unlawful detainment. Bills of Attainder Cannot pass laws declaring an individual or group guilty of some crime and imposing punishment without a trial Ex post Facto Law Protects against the criminalization of activities after they occur 1

2 Congress Shall Make no Law Barron v. Baltimore (1833) Issue: Is the city of Baltimore required to pay for damages to a wharf because they diverted the flow of Baltimore Habor? Marshall Responds: While the 5 th Amendment requires the federal government to give Just Compensation, these first ten amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them." Selective Incorporation The process by which a number of the Bill of Rights have been applied to the states via the due process clause of the 14 th amendment "This Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature" and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that private property shall not be taken for public use without just compensation, the Fourth Amendment's prohibition of unreasonable searches and seizures, and the Eighth's ban on cruel and unusual punishment." See Gideon 372 U.S. at Justice Black First Amendment: Religion Establishment Clause: the government shall neither create nor support an official state church How would a state support a religion? Lemon v. Kurtzman (1971) establishes a 3 prong test. 1. Law must have a secular intent 2. Must neither advance nor inhibit religion 3. must be free from an excessive government entanglement with religion 2

3 First Amendment: Speech The government can regulate speech largely in three ways: time, place, and manner. The government, can indeed regulate the content of your speech when it is aimed at producing imminent lawless action. Is symbolic speech speech under the 1 st Amendment? First Amendment: Press Prior Restraint: censorship of or punishment for the expression of ideas before the ideas are printed or spoken New York Times Company v. US (1971) Prior restraint is legal if there is a compelling state interest In this case, security was vaguely defined and therefore the company could publish Right of Criminal Defendants The rights of criminal defendants accounts for 50% of the Bill of Rights 4 th, 5 th, 6 th, 7 th, 8 th Why? 4 th Amendment What is a reasonable search? What if the search is unreasonable? Exclusionary Rule Many exceptions 3

4 Criminal Defendants 5 th Amendment Self Incrimination Double Jeopardy 6 th Amendment Right to counsel Jury Trials (criminal) 7 th Amendment Jury Trials (civil Criminal Defendants Cont. Gideon v. Wainwright (1963) and Miranda v. Arizona (1966) Gideon case applied the 6 th Amendment right to counsel to the states Miranda case applied the 5 th Amendment right to avoid self-incrimination to the states From both of these the Miranda Rights were developed Eighth Amendment: Cruel and Unusual Capital Punishment Evolving standard over time Ban on execution of criminally insane (1986) Ban on execution of minors (1988) Decisions on types of punishment have not ever ruled a specific method cruel or unusual 4

5 Where is the Right to Privacy The word privacy never appears in the constitution. Privacy has had a history of being defined by reproductive rights. Buck v. Bell (1927) Ruling allowed the involuntary sterilization of those mentally ill Griswald v. Connecticut Issue: Is it legal for Connecticut to ban the use of contraceptive devices? Decision: While privacy is not explicit in the Bill of Rights, it is implicit. In amendments 1, 3, 4, 5 and 9 elements of privacy can be found. Appling these to the states via the 14 th amendment, the law was determined unconstitutional and the right of privacy was born. What is contained in the Right to Privacy Reproduction? Roe v. Wade Been limited over time, though basic ruling still stands Gay rights? Not until recently Lawrence v. Texas (2003), which overturned Bowers v. Hardwick (1986) Story of Justice Powell Right to die? Sure, just write a living will if not 5

6 Inequality and Civil Rights Legal definition of Inequality Over time the Supreme Court has struggled with how to treat different groups of people Three tiered level of legal classification: Suspect Classification Quasisuspect Nonsuspect Suspect Classification Only used in cases involving race Laws involving suspect classes are reviewed using strict scrutiny Requires the state to answer three questions Does the act have a compelling state interest? Is the law narrowly tailored? Does it accomplish its goal by the least restrictive means? This is a very high hurdle for the government to win against. 6

7 Quasisuspect Generally based on gender distinctions Falls on the question of whether there is an important state purpose for the classification The meaning of important state purpose has evolved over time with the changing ideology of the Supreme Court Nonsuspect This designation is used for all residual class distinctions Also known as the rational basis standard As such, requires the government to show there is a rational basis for the law in question This standard is the easiest for the government to argue Procedural vs. Substantive The procedural view of equality in America would require fair treatment and opportunity for all. The substantive view would prefer equality in outcomes. The procedural view has come to dominate with the US. 7

8 De jure v. de facto De jure discrimination legally treats individuals differently on some specific characteristic De facto discrimination is generally discrimination not based upon laws, but either tradition or historical context. Segregation in American Society Long tradition of historical segregation, stemming in large part from the era of Reconstruction. Furthermore, laws of different types were used to suppress black political participation in the South. Literacy Tests Poll taxes Grandfather clauses Segregation Institutionalized In Plessy v. Ferguson (1896), created the nationalized doctrine of separate but equal Beginning in the early 1900s and continuing through the 1950s, the NAACP developed a legal strategy to overturn this decision This strategy focuses on showing how separate but equal laws in the realm of education were inherently inequal 8

9 Brown v. Board of Education (1954) Context Issue: Is segregation in school accommodations violate the 14 th Amendment equal protection clause? Warren Responds: Segregating school children, especially as such a young age, instills in both black and white students that the two races are unequal. This law treats individuals differently solely on the basis of race and is unconstitutional Gender and the Law History of Coverture Legally, upon marriage, the wife and the husband are treated as one individual. The woman s right stem from the man s. Originally adopted from England, this remained the enforced law through the late 1800s Suffrage The fight for the right to vote was carried out originally at the state level Through a highly organized political movement, women gain the right to vote with the adoption of the 19 th Amendment In the first few years following the 19 th Amendment, women did not turn out in large numbers, why? 9

10 Inequality following the Vote Title VII of the Civil Rights Act of 1964 Banned discrimination in hiring on basis of gender Title IX of the Education Amendments of 1972 Banned sexual discrimination in schools which received federal funds Had the ultimate effect of allowing equal participation in sports at the high school and collegiate levels What happened to the ERA? New developments in Civil Rights The Voting Rights Act History Shelby County v. Holder (2013) New Texas Laws Gay Marriage United States v. Windsor (2013) What does it mean? 10