Chapter 4

Civil Liberties and Civil Rights

Chapter Outline

  1. “Civil liberties” are defined as individual rights and personal freedoms with which governments are prevented from interfering.
  2. Civil rights are protections of citizen equality provided by the government.
  3. Civil liberties (protections of citizens from the government) and civil rights (protections of citizens by the government) both pertain to the ability of citizens to exercise personal freedoms, and both arise from the Fourteenth Amendment.

The Origin of the Bill of Rights Lies in Those Who Opposed the Constitution

  1. Despite the insistence of Alexander Hamilton that a bill of rights was both unnecessary and dangerous, adding a list of explicit rights was the most important item of business for the First Congress in 1789.
  2. The Bill of Rights would have been more aptly named the “Bill of Liberties” because it is made up of provisions that protect citizens from improper government action.
  3. Civil rights as a category refers to the obligations imposed on government to take positive action to protect citizens from any illegal actions of government agencies as well as of other private citizens. Civil rights did not become part of the Constitution until 1868 with the adoption of the Fourteenth Amendment, which sought to provide for each citizen “the equal protection of the laws.”

The Fourteenth Amendment Created the Doctrine of Incorporation

  1. In 1833, the Supreme Court found that the Bill of Rights limited only the national government and not state governments.
  2. The due process and equal protection clauses of the Fourteenth Amendment served as the basis for later Supreme Court rulings that applied most of the Bill of Rights to the states in the process of incorporation.
  3. As of 1961, only the First Amendment and one clause of the Fifth Amendment had been “selectively incorporated” into the Fourteenth Amendment. In the 1960s, however, most of the provisions of the Bill of Rights were incorporated into the Fourteenth Amendment and applied to the states.

The First Amendment Guarantees Freedom of Religion

  1. The establishment clause and free exercise clause of the First Amendment have led to several court cases addressing the role of religion in public life.
  2. The establishment clause and the idea of “no law” regarding the establishment of religion can be interpreted in several ways. One interpretation is that the government is prohibited from establishing an official church. A second interpretation holds that the government may not take sides among competing religions but is not prohibited from providing assistance to religious institutions or ideas as long as it shows no favoritism. The third view regarding establishment is the idea of a “wall of separation” between church and state that cannot be breached by the government.
  3. The free exercise clause protects the citizen’s right to believe and to practice whatever religion he or she chooses; it also protects the right to be a nonbeliever.
  4. In free exercise cases, the Supreme Court has taken pains to distinguish between religious beliefs and actions based on those beliefs.

The First Amendment and Freedom of Speech and the Press Assure Free Exchange of Ideas

  1. Although freedom of speech and freedom of the press hold an important place in the Bill of Rights, the extent and nature of certain types of expression are subject to constitutional debate.
  2. The doctrine of strict scrutiny places a heavy burden of proof on the government if it seeks to regulate or restrict speech. Americans are assumed to have the right to speak and to broadcast their ideas unless some compelling reason can be identified to stop them.
  3. Political speech was the activity of greatest concern to the framers of the Constitution, even though some found it the most difficult provision to protect.
  4. Protection of “speech plus”—speech accompanied by conduct or physical activity such as sit-ins, picketing, and demonstrations—is conditional, and restrictions imposed by state or local authorities are acceptable if properly balanced by considerations of public order.
  5. With the exception of the broadcast media, which are subject to federal regulation, the press is protected under the doctrine against prior restraint (efforts by a governmental agency to block the publication of material it deems libelous or harmful in some other way; in other words,censorship).
  6. Libel and slander, obscenity and pornography, fighting words, and commercial speech may fall outside the realm of absolute First Amendment protection, but these four types of speech still enjoy considerable protection by the courts.

The Second Amendment Protects the Right to Bear Arms in a Militia

  1. Constitutionally, the Second Amendment protects citizens’ rights to bear arms when citizens are called into militia service by the government.
  2. Constitutional interpretation of the Second Amendment underwent a seismic change in 2008 when, for the first time in history, the Supreme Court struck down a gun control law as in violation of the right to bear arms and ruled that the Second Amendment protected a personal right to own a gun, for personal self-defense at home.

Rights of the Criminally Accused Are Based on Due Process of Law

  1. The purpose of due process is to equalize the playing field between the accused individual and the all-powerful state.
  2. The exclusionary rule allows courts to exclude evidence obtained in violation of the Fourth Amendment, such as barring evidence obtained during an illegal search from being introduced in a trial.
  3. Double jeopardy is a protection to prevent a person from being tried more than once for the same crime.
  4. In interpreting the right against self-incrimination, the Supreme Court established the Miranda rule (the requirement that persons under arrest must be informed prior to police interrogation of their rights to remain silent and to have the benefit of legal counsel).
  5. The power of any government to take private property for a public use is called eminent domain. The Fifth Amendment puts limits on that inherent power through procedures that require a showing of a public purpose and the provision of fair payment for the taking of someone’s property.
  6. Virtually all the debate over Eighth Amendment issues focuses on the protection from “cruel and unusual punishment” and how that protection applies to the death penalty.

The Right to Privacy Is the Right to Be Left Alone

  1. Although the word “privacy” never appears in the Bill of Rights, there is general agreement that a right to privacy emanates from the first ten amendments.
  2. In the case of Griswold v. Connecticut, the Supreme Court found a right of privacy in the Constitution. This right was confirmed and extended in 1973 in the case of Roe v. Wade.
  3. The Supreme Court extended privacy protections to homosexuals in 2003 when it ruled that they are “entitled to respect for their private lives” in the case of Lawrence v. Texas.

Civil Rights Are Protections by the Government

  1. From 1896 until the end of World War II, the Supreme Court held that the Fourteenth Amendment’s equal protection clause was not violated by racial distinction as long as the facilities were equal.
  2. After World War II, the Supreme Court began to undermine the separate but equal doctrine, eventually declaring it unconstitutional in Brown v. Board of Education.
  3. The Brown decision marked the beginning of a difficult battle for equal protection in education, employment, housing, voting, and other areas of social and economic activity.
  4. The first phase of school desegregation was met with such massive resistance in the South that, ten years after Brown, fewer than 1 percent of black children in the South were attending schools with whites. Organized civil rights groups launched massive direct action campaigns against southern segregationists. The movement used the media to attract nationwide attention and support and created intense pressure for the reluctant federal government to take more assertive steps to defend black civil rights.
  5. Title VII of the Civil Rights Act of 1964 outlawed job discrimination by all private and public employers, including governmental agencies that employed more than fifteen workers.
  6. In 1965, Congress significantly strengthened legislation protecting voting rights by barring literacy and other tests as a condition for voting in southern states. In the long run, the laws extending and protecting voting rights could prove to be the most effective of all civil rights legislation, because increased political participation by minorities has altered the shape of American politics.

The Civil Rights Struggle Was Extended to Other Disadvantaged Groups

  1. The protections won by the African American civil rights movement spilled over to protect other groups as well, including women, Latinos, Asian Americans, Native Americans, disabled Americans, and gays and lesbians.

Affirmative Action Attempts to Right Past Wrongs

  1. By seeking to provide compensatory action to overcome the consequences of past discrimination, affirmative action represents the expansion of the goals of groups championing minority rights.
  2. Affirmative action has been a controversial policy. Opponents charge that affirmative action creates group rights and establishes quotas, both of which are inimical to the American tradition. Proponents of affirmative action argue that the long history of group discrimination makes affirmative action necessary and that efforts to compensate for some bad action in the past are well within the federal government’s purview.
  3. Recent conflicts over affirmative action have raised questions about what is effective political action.