This week: Lowi, Chpt 4 (Civil Liberties) Griswold v. CT: Is there a constitutional right to privacy Court as a 'governing' body A. Civil Rights and Liberties 20 th Century = changing definition of citizenship major question: citizen of what? Rights and Liberties: in speech, press, association, religion as an accused criminal from encroachment by FEDERAL govt. from encroachment by STATE govts (?)
B. Definitions: Civil liberties o the absence of coercion o rules that limit government's authority o protections FROM GOVT. specified in Bill of Rights o basic procedural rights of a citizen Civil rights o limit majorities power over minority o application of liberties equal to all groups in society o protections against categorical discrimination Nationalization of the Bill of Rights A. Founder s Fears (again...) Constitution based on fear of new NATIONAL governmen national government seen as the primary threat to liberty state governments granted power to define rights o slavery legal in some states
o if so, what rights & liberties B. Bill of Rights, 1791 insurance against the new national Congress acting British originally at least 17 items One proposal for no state shall deny free speech... this amendment rejected CONGRESS SHALL MAKE NO LAW RESPECTING... 1) establishing/prohibiting religion, 1) speech, press, assembly, petition 2) a well regulated state militia, bear arms 3) quarter soldiers 4) search & seize 5) no double jeopardy, no trial w/o indictment, due process 5) to taking private property w/o compensation 6) speedy trial, impartial jury, assistance of counsel 7) jury trial
8) no excessive bail, no cruel punishment 9) people retain rights beyond those listed here 10) states & people retain powers not delegated here Can states make laws respecting such things? Clear that original intent was to apply only to Congress how else could slavery exist until 1860s? C. Strict ("Dual") Federalism (pre Civil War) Strict division between powers and functions National: Canals, patents, currency, tariffs, defense, postal service States: Everything else public health morality welfare
education, banking regulate business, Criminal law Rights and liberties 10th Amendment Police Powers: " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" BUT: McCullough v. Maryland, 1819 People have two sets of rights From US Constitution From State Constitution Thus, limits on what a government can do, depend on which rights are at issue
D. Selective Incorporation of Bill of Rights by Courts key questions: do you have rights protected by Fed constitution? rights that a STATE government can not violate? protected by what? by Bill of Rights? o which parts of the Bill of Rights say that "states shall pass no laws about..."? 1. Selective INCORPORATION of Bill of Rights A slow, halting, gradual, incomplete process by Supreme Court mostly a function of changes in composition of Court not in changes in the Constitution Major change brought about by a change in the Constitution... Civil War: 14 th Amendment
2. Barron v. Baltimore (MD) 1833 John Marshall Barron owned a deep water wharf/dock City of Baltimore wrecked wharf Barron claimed Batl (MD) took property w/o due process o compensation o claimed 5th amed. protected from such acts by govt o Marshall Court: o NO, Bill of Rights protects against acts by National Govt. only o Court held this logic through 1897... 3. Consequences of Barron logic Baltimore can take w/o due process, unless state constitutio provides protection... Virginia can take life and liberty w/o due process an unavoidable but twisted logic?
two standards of citizens... of State of Nation states can and do have dift standards slavery in one, not another Civil War, 1860-1865 4. Post Civil War Amendments to Const. Constitutional revolution: 15th Amend (1870) right to vote... 14th Amendment (1868): Sec 1 defines US CITIZEN as born or naturalized in US NO State shall make or enforce any law which shall abridge the privileges and immunities of citizens, nor shall any state deprive any person of life, liberty or property w/o due process of law, nor deny to any person within its jurisdiction the equal protection of the laws...
Sec 5: the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Post Civil War Constitutional Issues A. What was intent of 14th s Amendment s Founders Radical Republicans Did they intend a constitutional revolution? INTENT = reverse Dred Scott (1857) o Scott: Blacks can't have rights of whites...not citizens o Establish NEW rights of citizenship that no state could violate o rebuild south in image of north - with freed African Americans as full citizens o allow Congress to step in and restrict states from undoing progress made via Civil War o emancipation alone would not end slavery (13th Amend.)
Civil War Extension of Civil Rights died in 1876 Tilden won via Democrats' use of fraud, & violence against African American voters in: South Carolina Louisiana Florida & Mississippi (maybe) Tilden (D) won Florida by 100 votes If FL EC votes counted, Tilden President Hayes (R) - Tilden (D) compromise: Hayes gets to be President South gets US Troops to end occupation Thus, it takes a long to establish national standards of rights 14th Amendment also ignored by US Supreme Court
Incorporation of Bill of Rights 14th Amendment (1868): Sec 1 defines US CITIZEN as born or naturalized in US NO State shall make or enforce any law which shall abridge the privileges and immunities of citizens, nor shall any state deprive any person of life, liberty or property w/o due process of law, nor deny to any person within its jurisdiction the equal protection of the laws... Sec 5: the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Courts Ignored 14th Amend Intent for Decades What are basic privileges and immunities of US citizen? What liberties, due process, equal protection? Limited?: right to marry, to move freely, own property, own business
vs. Expansive rights listed in the Bill of Rights are they found in parts of the Bill of Rights of 1791? are they the whole Bill of Rights? more than the Bill of Rights? Bizarre Definitions of Due Process and Equal Protection (1870s - 1925) 1. Courts "wrote out" equal protection clause 1883 ruled Congress did not have power to eliminate discrimination unless practiced by government 1896 ruled that state-sponsored discrimination OK Civil Rights Cases (1883) Congress passed Civil Rights Act in 1875: all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude
Court, "NO": Congress didn't have power to enforce 14th Amendment in this way 14th Amendment limited what STATE could do, not what a person could do... put an end to Radical Republican attempts to promote civil rights "equal protection" did not preclude private discrimination: o theaters o transportation o hotels o restaurants o housing o employment John Marshall Harlan, dissent in 8-1 decision
Plessey V. Ferguson (1896) 7-1 decision (Harlan, dissent) Court ignored facts about quality of facilities "separate but equal" facilities OK on: o railways o (public schools) "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." 2. Substantive v. Procedural due process distinction a. Substance = limit what government may do in writing Legislation, passing regulations aka economic due process b. Procedural due process = limit HOW laws are executed aka "rights" of participation, of accused criminals if Court chooses 1st interpretation, it may restrict scope of govt action w/o protecting citizens 1870s - 1920s Courts do just this
Review: Why did Congress pass 14th Amendment? 14th Amend due process clause = substantive protection protect "liberty of contracts" from STATE govt. acts Lochner v. New York (1905) a 5-4 majority o NY regulating hours of work in bakery o NY law = could not work more than 60 hrs p/ wk o Lochner convicted under NY law Justice Peckman: "right of the employee and employer to negotiate a contract is part of the liberty, under the 14th Amend, that no person can be denied w/o due process" [due process = est. legitimate reason] Since "no valid reason" to interfere, Lochner cant be denied his liberty of negotiating the contract Oliver W. Holmes Jr., dissent: "case decided on economic theory"... not the Const.
1868-1900: Court ignored: Privileges and immunities clause Due process clause Equal protection clause Congress' power to enforce via 14th Amendment Invalidated: business regulations anti-trust laws income tax civil rights Beginning of Incorporation of Bill of Rights See Lowi Chpt 4, p. 90 Is there a constitutional right to privacy? Where? Griswold v. CT Roe v. Wade
5th Amendment protection of property...1897 A. 1st Amend, Speech: Gitlow v. New York, 1925 1. Background: NY Criminal Anarchy Act of 1902 punish certain types of speech, regardless of INTENT or OUTCOME Gitlow distributing Left Wing Manifesto WW1 2. Incorporation: a (delayed) constitutional revolution very first part of one of the 1st 10 amendments considered to limit a state action affecting personal liberties Court recognizes that 14th Amend. Due Process Clause is a basis for their jurisdiction over STATE acts assume that speech is one of the fundamental privileges and immunities that ALL CITIZENS (US citizens) share 1st amend "among the fundamental liberties protected by the due process clause of the 14th amend"
3. Decision: Some speech protected from state acts via Bill of Rights reversing Barron v Baltimore (1833) BUT, previous Supreme Court decisions defined what speech is not protected, this was not Gitlow back to jail, since this type of speech not protected