Unit VICivil Liberties & Civil Rights

Chapter 4: Civil Liberties

  1. Introduction[1]
  2. Definition: The legal constitutional protections against government, formally set down in the Bill of Rights, interpreted and enforced by the other branches of government at both the state and federal level.[2]
  3. Balancing Test: Perhaps the most important idea to learn about liberties & rights is that none are absolute. All freedoms must be weighed against society’s need for order. As a consequence, the government frequently defines the way in which even the most fundamental freedoms can be denied.
  4. Impact of Federalism
  5. Barron v. Baltimore, 1833: The Court ruled that the limitations set down in the Bill of Rights only apply to the federal government.
  6. Gitlow v. New York, 1925: The Court ruled that, through the language of the 14th Amendment, the limitations set down in the Bill of Rights apply to state governments as well. In other words, the Bill of Rights prohibited New York from restricting Gitlow’s freedom of speech. This case established the legal doctrine of incorporation by implying that the other provisions of the Bill of Rights would also apply to states, if so tested.
  7. Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”[3]

Due process clause: specific clause of the 14th Amendment originally designed to protect freed slaves from discriminatory treatment at the hands of racist law enforcement in the “Jim Crow” South after the Civil War. More recently it has served as the engine behind the Court’s expansion of civil liberties in such cases as Gideon and Miranda.

  1. Since Gitlow extended the reach of the First Amendment, most of the Bill of Rightshas been likewise “nationalized,” or “incorporated,” through a process known as “selective incorporation.”
  1. First Amendment[4]
  2. Religion[5]
  3. Establishment clause: The first clause found in the Bill of Rights forbids the government from establishing a national religion.[6]
  4. Questions of meaning: Scholars, lawyers, and citizens alike continue to question the full extent and vision of this provision. Just how far did the Framers intend to go in limiting religious influence in government policies and public life?[7] For example, do corporations and business have religious freedom … the Supreme Court is ruling on the Hobby Lobby case involving mandatory contraceptive coverage through the Affordable Healthcare Act[8]?
  5. Free exercise clause: The second clause of the First Amendment prohibits the government from limiting the free exercise of religion.
  6. Belief vs. Practice: The courts have made a distinction between one’s religious belief (which is impossible to restrict) and one’s religious practice (which may become necessary –in light of the balancing test—to restrict). For example, although people can believe whatever they want, they may not actually exercise polygamy, human sacrifice, or the use of peyote as forms of worship.
  7. Article VI: One important religious protection is actually set down in the Constitution itself, before the writing of the Bill of Rights. In Article VI the Framers prohibited the requiring of a religious test or oath for holding public office.
  8. Speech
  9. More than Speech: The Court has expanded the concept of “speech” to encompass various forms of “expression.” In deciding which forms of expression to allow or restrict, the Court again must use the balancing test, weighing someone’s freedom of expression against society’s need for public order and safety, as well as national security.
  10. Forms of expression that have been limited by the Court:[9]
  11. Defamation
  12. Libel & slander
  13. Fighting words
  14. Clear and present danger
  15. Hate speech
  16. Incitement to crime
  17. Sedition
  18. Obscenity
  19. Disruptive of the learning environment in a public school
  20. Press
  21. Questions of libel/slander/defamation (overlap with “expression”)
  22. Questions of access: The perennial question of the freedom of press involves the media’s access to government information and/or secrets. This should remind you of executive privilege in the case of US v. Nixon, 1974. But it also includes topics like…
  23. Access to government documents (Freedom of Information Act, 1966 and 1996)[10]
  24. Access to combat operations (“embedded journalists” in Iraq)
  25. Camera access to trials
  26. Right to protect anonymous sources
  27. Current controversies?
  28. Assembly and Petition
  29. Limits: These freedoms have historically been less controversial, but also much easier to limit. State and local governments, for example, typically have been allowed to regulate the time, place, and manner of these activities (i.e., banning private property or requiring a permit).
  30. Expansion: The Court has interpreted these protections to include the right to political association; i.e., join an interest group or political party.
  1. Rights of the Accused
  2. Colonial legacy: The majority of the protections in the Bill of Rights stem from bitter memories of the colonial experience. The heavy hand of British justice frequently violated basic and commonly accepted forms of due process in the colonies. As a result, the Bill of Rights dedicates specific limitations on the government’s power through every phase of the justice system: searches and seizures of property that may occur during an investigation(Fourth), procedures for arrests, detention, and questioning (Fifth), the nature of the trial (Sixth/Seventh), and the extent of the punishment (Eighth).
  3. Procedural vs. Substantive Due Process: The Bill of Rights protections for the accused person fit into two basic categories. First, the procedures followed by law enforcement from the time of the original arrest through the final sentencing must be fair. Second, the substance of the charges (the law in question) must itself be reasonable/constitutional. Any misstep in either category can jeopardize a conviction. In other words, law enforcement cannot violate your procedural or substantive due process.
  4. Areas of controversy
  5. Arrest procedures
  6. Warrantless searches[11]
  7. Right to counsel
  8. Self-incrimination
  9. Exclusionary rule
  10. Interrogation methods
  11. Habeas corpus
  12. Sentencing (Eighth Amendment)
  1. Right to Privacy
  2. Origins: The Constitution and the Bill of Rights never actually specify a guaranteed protection of privacy. Instead, the concept of privacy has been “read into” the Constitution by the Court’s interpretation of the 4th, 9th, and 14thAmendments.
  3. Consequences: After privacy was established (Griswold) it became the precedent that gave rise to a woman’s right to choose an abortion (Roe); undoubtedly one of the most explosive and divisive issues in American politics.
  4. This is a huge controversy with the revelation of NSA’s spying on citizens[12].

Chapter 5: Civil Rights

  1. Introduction
  2. Definition: Policies designed to protect people against discrimination. Although so much of our political heritage is founded on the concept of “equality,” our government has a long history of withholding equality from certain elements of society.
  3. Major categories of discrimination:
  4. Racial
  5. Gender
  6. Other: age, disability, sexual orientation, religion, etc.
  7. Balancing Test: Perhaps the most important idea to learn about liberties & rights is that none are absolute. All freedoms must be weighed against society’s need for order. As a consequence, the government often restricts the rights of some in order to protect the rights of others.
  8. Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Equal protection clause: specific clause of the 14th Amendment originally designed to protect freed slaves from discriminatory state laws in the “Jim Crow” South after the Civil War. More recently it has served as the engine behind the Court’s expansion of civil rights in such cases as Brown.

  1. Standards and Classifications: When a discrimination case comes before the Court, the justices apply different standards to each of the three classifications (race, gender, other).[13]
  1. Historical Struggles for Equality
  2. African Americans
  3. Constitution & Bill of Rights
  4. Scott v. Sandford, 1857
  5. 13th, 14th, and 15th Amendments
  6. Plessy v. Ferguson, 1896
  7. Civil Rights Act of 1964
  8. 24th Amendment
  9. Voting Rights Act of 1965[14]
  10. UC Regents vs. Bakke, 1978
  11. Women
  12. 19th Amendment
  13. Civil Rights Act of 1964
  14. Equal Rights Amendment of 1972
  15. Title IX of the Education Act of 1972
  16. UC Regents v. Bakke, 1978
  17. Medical and Family Leave Act of 1993[15]
  1. Asian Americans
  2. Korematsu v. U.S., 1944[16]
  3. Native Americans
  4. Hispanic Americans
  5. Recent additions to the list
  6. Gay/lesbian
  7. Disabled
  8. Elderly & youth
  9. Muslims (post 9/11 racial profiling)
  1. Private Discrimination
  2. Definition
  3. Major Legislation
  4. Civil Rights Act of 1964: Banned discrimination against any group in public accommodations (hotels, motels, restaurants, etc.) and employment/hiring practices. This law constituted the crowning achievement of Dr. Martin Luther King, Jr., is still seen as one of the most significant milestones in the civil rights movement of the 20th century, and is the birthplace of affirmative action policies later pursued by Congress and the Courts (see Bakke).
  5. Abigail Fisher sued the University of Texas because of its use of race as a factor in determining admissions to the school. This is a fairly complex issue, and the Supreme Court referred its findings back to the Federal Appellate Court. You can read of summary of the arguments here.
  6. Education Act of 1972 (Title IX)
  7. Americans with Disabilities Act of 1990: Requires employers and public facilities to make “reasonable accommodations” for people with disabilities and prohibits discrimination against these individuals in employment.

[1] Before we even begin, take a moment to review the Bill of Rights in your mind. Can’t do it? You have three choices: visit the National Archives to study the Bill of Rights, visit the Constitution Center to study the Bill of Rights, or move to Canada.

[2] Browse the work of the Bill of Rights Institute as they try to keep the public educated about our civil liberties. And don’t miss the American Civil Liberties Union, an interest group dedicated to protecting liberties for all Americans. Feel free to click around a bit; it won’t take you long to find something controversial or thought provoking on this site.

[3]Check out the actual 14th Amendmentand get a great little synopsis.

[4] Check out for tons of resources related to our most important liberties.

[5] The Pew Forum on Religion and Public Life has some amazing data conveniently arranged. We love their US Religious Landscape Survey and their resources on Religion and Public Schools.

[6] The establishment clause not only protects our freedom OF religion, but also our freedom FROM religion. Check out the Freedom from Religion Foundation’s website. It’s sure to get a reaction out of you. Don’t miss their interactive quizzes on the left margin.

[7] Not very far according to some – like the American Center for Law and Justice; an interest group that is sick and tired of God getting squeezed out of public life. Great site.

[8]Read this news article from Politico

[9] Here’s a great CRS report on exceptions to free speech.

[10]The Obama Administration sets a new record for withholding information.

[11]Check out this current Supreme Court decision requiring police to secure a warrant before searching a person’s cell phone. However, this prohibition does not exist if you have traveled and are re-entering the country. Border agents have more latitude in their searches as discussed in the ACLU article.

[12]Read both this overview of government’s use of warrantless wiretaps AND peruse this timeline of events. How can the government do this?

[13]Peruse the criteria used to apply these standards

[14]This is an ongoing struggle

[15] Passed during the Clinton years, this law requires employers to grant leave of absence for employees who are seriously ill, have newborns or newly adopted babies, or who have to care for sick children, spouses, or parents. It was considered a major step forward for labor rights, and is currently being modified to be more “family friendly.”

[16]Here you’ll find a site dedicated to the PBS documentary of Fred Korematsu’s 40 year struggle for justice. You can watch the trailer and learn more about the story.