Unformatted text preview: Lesson 3 Chapters 3‐4
Civil Liberties and Rights Introduction Introduction
• Civil Liberties
– Rights guaranteed by the Bill of Rights. – Protects individuals from actions by government. • Civil Rights
– Rights protected by the 13th, 14th, & 15th Amendments. – Protects individuals from actions by other individuals or entities. Introduction Introduction
• Bills of Attainder
– Laws punishing individuals, rather than generally. • Ex post facto laws
– Laws retroactively punishing past behavior. *Both are unconstitutional. Incorporation of the Bill of Rights
• Gitlow v. New York (1925)
– Before this case, the Bill of Rights and other amendments were NOT applied to the states.
• Applied only to actions by the federal government. • Rationale – The US Constitution created the federal government and not the state gov’ts. – In this case, the Supreme Court (SCOTUS) held that freedom of speech and the press (in the 1st Amendment) were incorporated, through the 14th Amendment.
• Or, the states must guarantee these rights. • Basically, the 14th Amendment guaranteed certain but unnamed rights. SCOTUS says, “Here’s a handy list right here, called “The Bill of Rights” Incorporation Incorporation
• 14th Amendment, Sec. 1
– “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law” – SCOTUS has used the 14th A & Gitlow to apply some of the Bill of Rights to states.
• Fully incorporated: 1st, 4th, & 6th. • Partially incorporated: – 5th (no state right to grand jury) – 8th (no state right against excessive bail). • Not incorporated: 2nd, 3rd, 7th. • (9th and 10th deal with states’ rights) Incorporation Incorporation
• Most of the incorporation occurred during Civil Rights Era
– With help from a very liberal Supreme Court.
• Installed by FDR, over 3 full terms as Prez.
– Including 8 of the 9 SCOTUS justices. *Another reason why the election of a President is important. Interpretation Interpretation
• How much interpretation should there be? – Letter of the Law.
• The law as it is actually written down.
– Without regard to justice or fairness. – Spirit of the Law.
• The intent behind the law.
– Very often difficult to decipher what the original intent is. An An illustration…
• We all know it’s illegal to run a red light.
– What was the intent behind it?
• For public safety… we don’t want cars running into each other and killing the occupants. • So what if someone is at a red light, sees an out‐of‐ control tank coming up from behind, and their only escape is forward?
– Should the driver be punished?
• A judge observing letter of the law would say that, though the alternative is death, they still broke the law (i.e., ran the red light) so would still have to pay the ticket. • A judge observing the spirit of the law would say that, by following the law, it violates the very reason the law exists, and therefore the driver should NOT be punished. A note about protections…
• Courts are not the only ones to protect rights/liberties.
– Some amendments explicitly give Congress the power to make laws to protect individuals.
• Also, Congress may act within its powers, e.g. Commerce Clause. – State constitutions often provide more protections than U.S. Constitution.
• E.g., some states explicitly provide for gender rights. First First Amendment
• Rights guaranteed by the 1st Amendment.
– Freedom of religion. – Freedom of speech. – Freedom of the press. – Right to assemble. – Right to bring grievances to government. Freedom Freedom of Religion
• Two clauses protecting freedom of religion.
– The Free Exercise Clause. – The Establishment Clause. Freedom Freedom of Religion
• Free Exercise Clause
– Prohibits governmental interference with one’s religious practices.
• Court tends to allow government to regulate religious behavior more than religious beliefs.
– I.e., the gov’t can’t tell you what to believe, but can preventing you from acting out on it. • Determining factors.
– Is the behavior outside the general practice of society? – Is there an overriding societal interest? – Was the law passed specifically to restrict religion? • Consider the totality of the circumstances… none of the above factors outweigh the others. Just look at the whole situation in asking, “Is it fair to restrict religion?” Freedom Freedom of Religion
• Establishment Clause
– Prohibits Congress from making any law affecting the establishment (or the institution) of religion.
• Must treat religion neutrally. – Lemon v. Kurtzman test – a law is valid if…
• It has a secular purpose.
– I.e., non‐religious purpose. • Its primary purpose neither advances nor restricts religion. • There is no “excessive entanglement” between government and religion.
– I.e., separation of church and state. Freedom Freedom of Religion ‐ Examples
• • • • Nuns in public high school. – It ’s ok for a school to hire a nun from a private school for the purposes of teaching French, absent other qualified teachers in the area. Bibles on desks. – It is NOT ok for a school principal to have a family bible out on his desk. Religious Jewelry – It is ok for teachers to wear small crucifixes and Stars of David on a neckchain. School Prayer – Prayers during school and at graduation (of public schools) unconstitutional. • Even if student‐initiated, if using school’s PA systems. Use of school facilities – Religious student groups have the same access rights as any other groups. School funding. – The Supreme Court has held that a private religious school with 95% funding from government (through property taxes) is NOT excessive entanglement. • • Freedom Freedom of Religion ‐ Examples
• Pledge of Allegiance
– Pledge was written in 1892 by Rev. Francis Bellamy.
• “Under God” was added by Congress in 1954.
– Lobbied by Knights of Columbus. – Legislation pushed and signed by Eisenhower. – Forced recital WAS unconstitutional in the 9th Circuit from June 2002‐June 2004.
• Elk Grove USD v. Newdow • US Supreme Court reversed for lack of standing. Freedom Freedom of Speech/Press
• Clear and Present Danger Doctrine
– Allows limitations on free speech if it threatens public order or national security. – Schenck v. United States
• Congress passed the Espionage Act during WWI, which punished spying AND political speech that disrupted the war effort. • Schenck (a Socialist) sent 15,000 letters to draftees telling them not to report for service. • Supreme Court upheld his conviction under the Act.
– His acts were a clear and present danger to national security. Freedom Freedom of Speech
• Miller v. California (1972)
– Miller sent a mass mailing advertising the sale of adult material, in violation of CA statute prohibiting the distribution of obscene material.
• Miller claimed that the statute violated his right to free speech. • These catalogshad no nudity, but did display the various products available, including on the cover. – Supreme Court held 5‐4 that obscene material did not get 1st Amendment protection.
• Representations of the human form could be considered obscene. Freedom Freedom of Speech
• R.A.V. v. St. Paul (1992)
– Some bored teenagers burned a makeshift cross on a black family’s lawn (the one single black family home in a tract of hundreds of others)
• (Besides separate arson and trespassing charges) R.A.V. was charged and convicted under a criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender ” – Supreme Court said ordinance was unconstitutional.
• Government can’t disapprove of an unpopular idea.
– E.g., under the ordinance, one could display the US flag, but not the Nazi flag. Freedom Freedom of Speech
• Texas v. Johnson (1989)
– Johnson (a Communist) burned a US flag during the 1984 Republican National Convention.
• 48 of the 50 states had laws against desecration of the US flag. • Convicted and sentenced to 1 year in prison and $2,000 fine. – Supreme Court (5‐4) said Johnson was protected by the 1st Amendment.
• The act of burning the flag was “directly related to expression” and therefore protected by the 1st Amendment Freedom Freedom of Speech
• Other speech that may be regulated.
– Commercial advertising
• Should we allow advertisers to say whatever they want? – Fighting words
• You can’t go up to a cop, say “I’m going to shoot you” and not expect him to do something about it, even if you yell “First Amendment!” – Malicious speech affecting one’s reputation
• You can’t smear someone else’s reputation.
– Against public figures and those who are newsworthy » Truth is a defense. – Against private individuals » Can be punishable, even if it’s the truth – Material that is “obscene” according to community standards.
• Or, lacks serious literary, artistic, political, or scientific value. • Question: How do you define art? Or lack thereof? Freedom Freedom of the Press
• Same standards as freedom of speech.
– I.e., clear and present danger. • New York Times v. United States (1971)
– a.k.a. “The Pentagon Papers Case” – NYT got a hold of some classified secret documents, but the information wasn’t vital to national security. – Supreme Court held that the NYT may publish them unless the government could show that doing so would harm national security.
• Major victory for freedom of the press. • Contrast with Great Britain (& most of the world)
– Parliament can give newspapers and periodicals “D” Status.
• People who continue to publish will be jailed and fined. • = no true freedom of the press. Freedom Freedom of Assembly
• Subject to greater restriction than speech or the press. • Laws affecting right of assembly must be content‐neutral.
– Can’t restrict on basis of message or ideas. – Must be restricted only to time, place, or manner.
• E.g., no parades between 6pm‐8am • E.g., no parades in front of the courthouse • E.g., no parades that use live ammunition – Restrictions must allow reasonable alternatives. Freedom Freedom of Assembly
• Police Dept. of Chicago v. Mosley (1972)
– City ordinance prohibiting picketing within 150 feet of a school.
• Exception made for labor protests. – Mosley picketed against “black discrimination” – Supreme Court said the exception made the ordinance content‐based, and therefore unconstitutional.
• Court wary of the government “picking and choosing” which messages are or are not ok. 2nd Amendment
• Right to Bear Arms.
– “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” • Interpretations.
– Only a “well‐regulated militia” may bear arms.
• I.e., today’s National Guard. – “The people” may bear arms. 2nd Amendment
• The government has sided more with supporters of gun control.
– Supreme Court has NOT incorporated the 2nd Amendment.
• States are free to regulate guns as they please.
– California heavily restricts gun ownership. – New Hampshire guarantees the right to all its citizens, mostly regardless of age. • Subject to federal regulation. – Congress passed the Brady Bill.
• Ban on certain assault weapons. • Waiting period to buy handguns. • Background checks. 4th Amendment
• Right against Unreasonable Search and Seizure.
– Requires a warrant, based on probable cause. – When a warrant is not required.
• The suspect consents. • In public view. • When failure to search would endanger lives of police or public. • When evidence is likely to be destroyed. 4th Amendment
• Supreme Court applies a stricter standard to police/law enforcement than other government agencies. • New Jersey v. T.L.O. (1985)
– Principal suspected a student was smoking on campus (not allowed), and searched her purse for cigarettes. – He found marijuana and buyer’s list, and called the police. – Student claimed that the search was illegal and the evidence was improperly seized, since there was no warrant. – Supreme Court held that school administrators only had to prove “reasonable suspicion” to search students.
• Gives schools more flexibility for order and discipline. • Though more drastic measures require the heightened “probable cause.” 4th Amendment
• Exclusionary Rule
– Evidence illegally obtained must be excluded at trial. – Exceptions.
• Police were acting “in good faith”, even if warrant was invalid. • Inevitable discovery.
– The evidence would have been found anyway, if there was a valid warrant. • Independent source.
– The evidence came from an independent 3rd party. • Many other exceptions available. 5th Amendment
• Right against Self‐Incrimination.
– If testifying will produce incriminating evidence. • Can only claim the 5th in criminal proceedings. • Right to Remain Silent.
– Pre‐1936 – confessions were allowed, no matter how “coerced” they were. – 1936‐1966 – confessions were allowed only if it was voluntary.
• Even if suspect did not know about right to remain silent. 5th Amendment
• Post‐1966 – Miranda v. Arizona
– Suspect MUST be told of right to remain silent. • As well as right to attorney and anything that is said could be used in court. – Rationale: suspect could then make an informed decision before confessing. 5th Amendment
• Right to Grand Jury
– “Large” juries to hand out indictments.
• Can look at ALL evidence. • Can be done in secret. • Right against Double Jeopardy
– Can’t be tried for the same crime twice.
• (In the same jurisdiction)
– Can be tried again across different states; state vs. federal; federal vs. military. – Jeopardy attaches when jury is seated. 5th Amendment
• Due Process Clause
– Gov’t can’t take life/liberty/property without due process of the law.
• There has to be assurances and procedures to prevent arbitrary decisions that take away your rights.
– E.g, public hearings, appeals, etc. 5th Amendment
• Private Property Rights.
– Can’t take private property.
• Unless it’s for “public” use, and • Just compensation is given. – Poletown Neighborhood Council v. Detroit (1981) – Mich. Supreme Court
• “Poletown” was a Polish‐dominated neighborhood that was severely poor, blighted, rundown, etc. The City of Detroit took all the property in the neighborhood to “revitalize” it. It then gave the property to General Motors (a private company) to build a new factory.
– 1,300 homes, 140 businesses, six churches and one hospital were leveled. • Michigan Supreme Court allowed the gov’t to take land through eminent domain, even though it was NOT for a government use.
– Redefined “public use” = significant public benefit. – “Taking” could also mean interfering with use.
• E.g., preventing development under Endangered Species Act. 6th Amendment
• Right to Counsel
– Right to a lawyer in criminal cases (but not all).
• For felonies. • For misdemeanors involving imprisonment. – So long as representation is available.
• Adequacy is a different story. – Right to represent self. 6th Amendment
• Right to Speedy Trial
– The accused can’t be held indefinitely waiting for trial. – Standard is 45 days. • Right to Public Trial
– Rationale: To keep trial process transparent to the people. – Can be closed for overriding interests in justice and fairness.
• E.g., gag order 6th Amendment
• Right to Jury (in criminal cases)
– Must be “of peers”
• Jury pool must be a cross‐section of community. • Jury itself might be a different story. – Must be impartial.
• Voir dire – selection process.
– Questions are asked to determine any bias. – Peremptory Challenge » Removal of candidate without cause/reason. » EXCEPT based on group/minority characteristic. 6th Amendment
• Right to Confront Witnesses
– To cross‐examine.
• In general, hearsay is not permitted.
– BUT, close to 20 exceptions ( ! ) – To bring favorable witnesses.
• You have the right to defend your character. • Right to be notified of accusation.
– To be informed of nature and cause. 7th Amendment
• Right to Jury Trial (in civil cases).
– (Remember, NOT incorporated) • Reexamination of Facts.
– A judge may enter a JNOV (judgment not withstanding)
• I.e., a reasonable jury, given the facts, would not have come to that verdict, so judge can overrule the jury.
– In civil, judge may alter judgments and awards. – In criminal, judge may change guilty verdict into innocent. 8th Amendment
• Right against Excessive Bail and Fines • Right against Cruel and Unusual Punishment
– Societal standards for “cruel” and “unusual”
• E.g., Judge in OH known for unique sentences.
– Made teen (who stole from a porn store) sit across the street from the store, blindfolded and holding a sign saying “See No Evil” – Passes muster because while unusual, it ’s not very cruel. 8th Amendment
• Death Penalty – is it cruel and unusual? – Death is the ultimate act of cruelty.
• BUT, capital punishment was widespread when the Bill of Rights was drafted, and framers didn’t intend to eliminate it. – Opposition
• Today’s standards are different. • Disproportionate number of minorities sentenced to death. – Death penalty statutes (where available) must…
• Give guidelines on when to impose death. • Not be automatic or compulsory. 14 14th Amendment
• Equal Protection Clause.
– “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
• Keep in mind this question… “Who or what is a person?” Segregation Segregation
• Plessy v. Ferguson
– Upheld “separate but equal” doctrine.
• Separate facilities were constitutional as long as they were equal.
– As long as quantity was equal; quality was irrelevant. » E.g., 5 toilets were the same as 5 outhouses. – De jure segregation – segregation by law. • Brown v. Board of Education of Topeka
– Overturned Plessy.
• Evidence that separate was NOT equal. – *Liberal Supreme Court appointed by FDR. Segregation Segregation
• Southern states responded with avoidance tactics.
– White students could transfer out of an integrated school. – Sometimes state funds went to all white schools. – Some schools closed (rather than be integrated) (Interesting link: http://www.library.vcu.edu/jbc/speccoll/pec02.html) Segregation Segregation
• Swann v. Charlotte‐Mecklenburg County Board of Education
– Supreme Court ordered immediate integration for schools.
• Even if it meant busing students. – Now, the “Civil Rights Movement ” affected both northern and southern schools.
• Many northern families claimed to have moved out to the suburbs to go to better schools, and NOT to be racists. But now their kids are being forced back to the schools they moved to avoid. Segregation Segregation
• Sparked “white flight”, or movement of white families to suburbs/rural.
– De facto segregation – segregation as an indirect result of where people lived. • Later, a more conservative Supreme Court backed off integration.
– Held that students didn’t have to be bused to the inner‐ cities. – Held that a court could not make a state pay for new schools in the inner‐city to keep whites from leaving. Affirmative Affirmative Action
• Hiring or admission preferences to make up for past discrimination. • Courts since the 1970s have slowly backed away from affirmative action.
– Regents of the UC v. Bakke (1978)
• Davis Med School allocated 16 of 100 spots to non‐whites (so 84 spots for whites) – There were no black doctors in Davis, and there was a goal of having at least one stay. • Bakke was the 85th‐ranked white student, and wasn’t admitted. He claimed he was discriminated against because of his race. • Supreme Court held in favor of Bakke, 5‐4. Affirmative Affirmative Action
• Cal. Proposition 209 (1996)
– Eliminated affirmative action in state government and universities. • Ask, “At what point has past discrimination been redressed?” Voting Voting Rights
• 15th Amendment – allowed slaves and other minorities the right to vote.
– But of course, the Southern states had all these wacky ideas to stop that.
• Poll taxes • Literacy tests • Harassment, coercion, etc. • Voting Rights Act of 1965 further guaranteed voting rights of minorities by outlawing any hindrances to voting.
– Related note: since there is NO official language for the US, lack of English comprehension should not prevent one from voting, which is why there are ballots in so many languages. Voting Rights
• Gerrymandering, a.k.a. affirmative apportionment.
– Drawing voting district lines according to racial makeup, to give an advantage. – Mobile v. Bolden (1980) – held it unconstitutional.
• City of Mobile, AL had 5 districts (4 predominantly white, 1 black), and each voted in a councilmember (so always 4 whites and 1 black serving on the city council)
– Mobile changed an at‐large election where all districts voted for all 5 positions. – What happens when a 4/5 white majority votes for all the candidates? » Result = all members were white. – Amended Voting Rights Acts
• Outlawed apportionment practices with discriminatory effects.
– Even if unintended. NC’s attempt at redistricting • It so happens that the area in red contained the vast majority of African‐American voters in the state. The district was ruled unconstitutional (Shaw v. Reno) Voting Voting Rights
• After 1990 census, districts were redrawn to create as many minority‐dominated districts as possible.
– Affirmative apportionment supported by liberals.
• To protect representation of a strong minority presence. – Also supported by Republicans.
• In hopes of creating stronger white districts, who would vote for their party in the future. • The Supreme Court has tightened the rein on redistricting in between censuses, unless for a good cause.
– Race can’t be the primary consideration of drawing lines. Women Women’s Rights
• Women not mentioned in the Constitution. • Though 14th Amendment said “all persons”, the Supreme Court felt that it was the “natural” role of women to be wives and mothers.
– And, there are natural differences in men and women. Women Women’s Rights
• Early special protections warranted.
– Limits on women’s (and not men’s) work hours.
• Women were considered more fragile and could not work long hours without ill effects to their health. – Exempting women from paying taxes when they ran a small business.
• Women‐run businesses would fail anyway, so no need to have this hurdle. Plus, what tax revenue could there be on $0 profit? – Exempting women from jury duty to take care of kids and “serving a traditional female role.” (1961).
• Women were supposed to be at home cooking and caring for the kids, not serving on juries. • 19th Amendment – granted women right to vote Women Women’s Rights
• Equal Protection for Women. – Started with Civil Rights Act of 1964. • Actually, women were included in hopes that it would kill the bill. – But it passed, so now women could not be discriminated against either. • Supreme Court finally joined in, in 1971. – Phillips v. Martin Marietta Corp. • Not hiring women because they had young children violated the Civil Rights Act.
– Martin Marietta was an aircraft manufacturer, and since factories were dangerous, they didn’t want to create orphans if the mother walked into a propeller. Women Women’s Rights
• Roe v. Wade (1973)
– Laws against abortion violated implied (but fundamental) right to privacy. – Laws that restrict abortion must not create an undue burden on the woman in getting the abortion.
• There must be reasonable alternatives available. Women Women’s Rights
• Roe v. Wade (1973)
– Limitations – Undue burden test
• State hospitals not required to perform abortions.
– The women can still go to a private facility. • Clinics may have brochures against abortion in waiting rooms.
– As long as she’s not forced to read it, it can be around her. • States may require parents to be notified if child wants an abortion.
– Notification is not the same as getting consent. • States may prevent certain types of abortions, or abortions after the 24th week (viability). Women Women’s Rights
• Affirmative Action
– Johnson v. Transportation Agency of Santa Clara Cty.
• A woman was hired over a man with slightly better credentials.
– There had never been a woman who worked as a dispatcher. • Court agreed that differences was not significant enough, and the hiring made up for past discrimination, so it was still ok. Women Women’s Rights
• Affirmative Action
– United States v. Virginia (the VMI case).
• Women were allowed into an all‐male, state‐sponsored military academy. – E.g., U.S. Navy
• Policy stating that male officers may be forced to retire if he holds his current rank for 8 years. • Women get 12 years to advance in rank. • Rationale = it’s still more difficult for women to be promoted, especially when they can’t fight on the front lines. Gay Gay Rights
• The Supreme Court has upheld laws that make homosexual acts illegal.
– Bowers v. Hardwick (1986)
• Police officer was serving an arrest warrant when he entered the apartment and saw the defendant engaged in sexual activity with another male, against state law. • Court held 5‐4 there was no constitutional right to engage in homosexual sodomy, so therefore the conviction stands. Gay Gay Rights
• But the Supreme Court also has said that discrimination against homosexuals is unconstitutional.
– Romer v. Evans (1996)
• Colorado passed a constitutional amendment that kept local governments from banning discrimination against gays. • Clear purpose and drive behind it was discrimination. • Supreme Court struck down the amendment.
– While the state doesn’t have to protect homosexual behavior, it also can’t prevent those same protections. Gay Gay Rights
• BUT! Supreme Court has overturned Bowers and struck down a law that made homosexual sodomy illegal.
– Lawrence v. Texas (2003)
• Similar situation to Bowers, but in Texas. – BUT Supreme Court used the right to privacy.
• NOT the Equal Protection Clause of the 14th Amendment. • As of right now, homosexuals are NOT a protected class of citizens.
– I.e., it’s ok to be homosexual, but it’s not ok to act homosexually. Equal Equal Rights Amendment
• Last major attempt to protect against gender discrimination. • Submitted to Congress, passed, and proposed to states for ratification in 1972. • “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
– Too much opposition to get 38 states to ratify. – Expired in 1982 with no ratification. USA PATRIOT Act
(Highlights) • Full name: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 • Passed post‐9/11, it greatly expanded the government ’s power to encroach on individual privacy. • Highlights.
– Stored emails, voicemails, and other electronic communication can be accessed if the government merely says that info gained is likely to help in an ongoing criminal investigation.
• No probable cause needed for warrant. – Easier to track calls made and received. – “Sneak and peek” – warranted searches conducted without prior notice. A note about Civil Disobedience
• Sometimes, you might have to break a law to have standing to challenge it.
– If declared unconstitutional, then you’re off the hook. – If upheld, you suffer the consequences. A note about Civil Disobedience
• Collateral Bar Rule
– Judges have authority to issue court orders, e.g. temporary restraining order (TRO) – If you violate a court order, you can be held in contempt.
• EVEN if issued based on an unconstitutional law. • Gives courts broad power in handling situations. • E.g., MLK marching in Birmingham. A note about Precedence and Jurisdiction
• Obviously, when the Supreme Court hands down a decision, it is authority over the entire U.S. • U.S. Court of Appeals decisions
– Binding precedence ONLY within the Circuit.
• Merely advisory in other Circuits – Thus, you could have two completely opposing holdings (and interpretations) existing in this country.
• Supreme Court tends to step in to fix the problem. ...
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