Chapter 4: Civil Liberties – Key Vocabulary

Civil Liberties vs. Civil Rights

• Distinct concepts (often conflated):

  • Civil Liberties

  • Limitations on government power designed to protect individual freedoms.

  • Civil Rights

  • Constitutional guarantees that government will treat people equally, regardless of protected-class status (race, gender, ethnicity, religion, etc.).

• Pandemic example (Capitol Hill Baptist Church v. Bowser, 2020): collision between religious liberty and public-health regulation—outcome allowed outdoor worship services.

Constitutional Foundations

• Bill of Rights (1789 proposal; 1791 ratification)—primary repository of civil-liberty protections.

• Ratification debate: promise of amendments was essential to winning state approval of the Constitution.

• Article I, § 9 prohibitions:

  • \textbf{Bills of attainder} – legislative punishments without trial.

  • \textbf{Ex post facto laws} – retroactive criminalization.

  • \textbf{Suspension of habeas corpus} – forbidden except in rebellion/invasion; writ requires judicial review of detention.

  • Historical precedent: Ex parte Quirin (1942) upheld military commission trials for unlawful enemy combatants.

Incorporation Doctrine

• Pre-Civil War: Bill of Rights constrained only the federal government.

• Post-Fourteenth Amendment (1868): Supreme Court used the amendment’s Due Process Clause to incorporate most Bill-of-Rights guarantees against state action (selective, clause-by-clause).

• Key figure: Representative John Bingham, principal author of the Fourteenth Amendment.

Bill of Rights – Individual Amendments

• First Amendment – religion, speech, press, assembly, petition.

• Second – right to keep & bear arms.

• Third – no quartering of soldiers.

• Fourth – protection from unreasonable search & seizure.

• Fifth – grand-jury indictment, double jeopardy bar, self-incrimination protection, due process, just compensation (takings).

• Sixth – fair-trial rights (speedy, public, impartial jury, counsel, confrontation, compulsory process, notice).

• Seventh – jury trial in civil suits.

• Eighth – no excessive bail/fines; no cruel & unusual punishment.

• Ninth – unenumerated rights retained by the people.

• Tenth – powers not delegated to U.S. or denied to states are reserved to states/people.

Categories of Rights (Figure 4.5)

• Individual Freedoms: First, Second, Third Amendments.

• Procedural Protections (Criminal & Civil): Fourth through Eighth Amendments.

• Residual / Structural: Ninth & Tenth Amendments.

First Amendment – Clauses & Scope

• Establishment Clause: no state religion, no preference among faiths.

• Free Exercise Clause: government may not prohibit or unduly burden religious practices.

  • Example: Oregon bakery & Masterpiece Cakeshop—tension between free exercise and anti-discrimination laws.

• Free Speech Clause: protects verbal, written, and symbolic speech.

  • Allows even offensive or hateful expression; but permits regulation of true threats or incitement.

  • Symbolic speech cases: flag burning (protected), cross burning with intent to intimidate (may be banned).

• Free Press Clause: bars prior restraints & censorship of news/opinion.

• Free Assembly Clause: protects peaceful gatherings & protests.

• Right to Petition Clause: ensures ability to seek redress—letters, lobbying, lawsuits.

• Overlapping concept Freedom of Expression combines speech, press, assembly, petition rights.

• Illustrative imagery: U.S. currency motto “In God We Trust,” Ten Commandments monuments—ongoing Establishment-Clause debates.

Second Amendment

• Text: “A well regulated Militia… the right of the people to keep and bear Arms, shall not be infringed.”

• Little controversy until post-Civil War “Black Codes” restricted freedmen’s arms.

• 1930s: first federal gun controls (e.g., National Firearms Act).

• District of Columbia v. Heller (2008): Court recognized individual right to possess firearms for lawful purposes (self-defense at home).

• McDonald v. Chicago (2010): incorporated the individual right against the states via Fourteenth Amendment.

• Right remains subject to regulation (e.g., public-park “No Firearms” signs).

Third Amendment

• Forbids quartering soldiers without consent in peacetime (and limits in wartime).

• Response to British Quartering Acts experienced by colonists.

• Not yet incorporated; rarely litigated.

Fourth Amendment – Search & Seizure

• Requires probable cause and specific warrants.

• Gray areas: car searches, cell-phone data, digital privacy.

• Warrantless search exceptions:

  • Consent.

  • Exigent circumstances (risk of evidence destruction).

  • Items in plain view.

• “No-knock” warrants controversial; example: police shooting of Breonna Taylor spurred reform efforts.

Fifth Amendment – Protections

• Grand-jury indictment for felonies.

• Double jeopardy bar (criminal only; civil still possible).

• Self-incrimination safeguard; Miranda v. Arizona (1966) requires warnings during custodial interrogation.

• Due Process Clause – procedural & substantive fairness.

• Takings Clause: private property cannot be taken for public use without “just compensation.”

  • Tools such as civil forfeiture criticized for undermining this guarantee.

Sixth Amendment – Trial Rights

• Speedy, public trial by impartial, vicinage jury.

• Notice of charges.

• Confrontation & cross-examination of witnesses.

• Compulsory process to obtain favorable testimony.

• Right to counsel; Gideon v. Wainwright (1963) established state obligation to provide attorneys for indigent defendants—originated with Clarence Gideon’s handwritten cert petition.

Seventh & Eighth Amendments

• Seventh: jury trial preserved in federal civil cases >\$20 (historical threshold).

• Eighth: prohibits

  • Excessive bail/fines.

  • Cruel & unusual punishment.

• Capital punishment debate: United States maintains death penalty; Amnesty International data (2007-2019) show U.S. 12^{\text{th}} highest per-capita execution rate.

  • Sample figures (average annual executions): 399.2 Iran, 112.5 Saudi Arabia, 35.0 United States, etc.

Ninth Amendment – Unenumerated Rights

• Text cautions that listing rights should not deny others “retained by the people.”

• Competing views:

  • Source of natural/common-law rights.

  • Merely interpretive “rule of construction.”

Tenth Amendment – Federalism

• Reserves non-delegated powers to states/people.

• Modern Court treats as reiteration of enumerated-powers doctrine, but occasionally invoked to limit federal overreach.

Implied Right to Privacy

• Not explicit in Constitution, but inferred from: Second, Third, Fourth, Fifth (due process & takings), Ninth Amendments.

• Recognized in Griswold v. Connecticut (1965) (contraceptive use by married couples).

• Privacy jurisprudence underlies abortion, intimate association, and surveillance cases.

• Contemporary issues:

  • Anti-solicitation signs after Pruneyard decision balancing speech & property rights.

  • Abortion protests & clinic “buffer zones.”

  • Technology & tracking: electronic toll systems (E-ZPass, FasTrak) raise movement-monitoring concerns.

Ethical, Philosophical, & Practical Implications

• Tension between individual liberty and collective security (e.g., pandemic restrictions, national security prosecutions).

• Ongoing debate over scope of religious freedom vs. anti-discrimination protections.

• Gun-rights discourse pits self-defense and tyranny-prevention rationales against public-safety arguments.

• Search-and-seizure disputes focus on balancing effective policing with privacy and racial-equity considerations.

• Death-penalty litigation raises moral questions of retribution, deterrence, and wrongful conviction risk.

Connections to Other Concepts / Lectures

• Federalism: Tenth Amendment interacts with Commerce Clause limits (see preceding chapters).

• Judicial Review: incorporation & privacy rights illustrate Supreme Court’s role in rights expansion.

• Civil-Rights Movement: First Amendment protections enabled demonstrations like 1963 March on Washington (photo of Sidney Poitier, Harry Belafonte, Charlton Heston).

• War-powers & national security: Ex parte Quirin parallels to modern military commissions at Guantanamo Bay.
  
  Civil Liberties vs. Civil Rights

  • Distinction

    • Civil liberties: Government cannot act; they are negative restraints that safeguard individual freedoms (speech, worship, press, assembly, petition).

    • Civil rights: Government must act; they are positive guarantees of equal treatment for everyone, especially members of protected classes (race, gender, ethnicity, religion, national origin, disability, sexual orientation, etc.).

  • Foundational implication

    • Civil liberties flow largely from the Bill of Rights and the Due Process Clauses (Fifth and Fourteenth Amendments).

    • Civil rights flow primarily from the Equal Protection Clause and subsequent statutes.

  Equal Protection Clause and Constitutional Foundations

  • Text: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, 1868).

  • Judicial gloss

    • Supreme Court shorthand: “All persons similarly circumstanced shall be treated alike.”

    • Practical restatement: “Similarly situated individuals are treated similarly.”

  • Principles grounded in equality, fairness, and non-discrimination, yet not absolute—some discrimination allowed if constitutional tests are met (e.g., age restrictions on alcohol).

  Discrimination: Definitions and Legal Framework

  • Discrimination: Unjust/prejudicial treatment of categories of people, esp. by race, age, sex.

  • Two analytic prongs the courts examine:

    1. Discriminatory impact/effect – facially neutral law produces unequal outcomes.

    2. Discriminatory purpose/intent – law enacted because of the unequal treatment it produces.

  • Example of lawful discrimination: age-based alcohol purchase limit (21+). Example of unlawful: race-exclusive hiring.

  Levels of Scrutiny in Equal Protection Jurisprudence

  • Rational Basis Test (default)

    • Government action must be rationally related to a legitimate goal.

    • Burden: Challenger must prove no rational link.

  • Intermediate Scrutiny (gender/sex, legitimacy of birth, some immigration status)

    • Action must be substantially related to an important objective.

    • Burden: Government.

  • Strict Scrutiny (race, ethnicity, national origin, religion, fundamental rights)

    • Action must serve a compelling interest, be narrowly tailored, and use the least restrictive means.

    • Nearly always fatal to the challenged law.

  Affirmative Action

  • Definition: Policies/programs intended to remedy historical discrimination and expand opportunities (education, employment) for marginalized groups.

  • Legal tightrope: Allowed if it meets strict or intermediate scrutiny (depending on category) and uses race/sex as a plus factor, not a quota (e.g., Regents v. Bakke, Grutter v. Bollinger).

  • Ethical debate: Equity vs. color-blind meritocracy, remedy vs. reverse discrimination.

  Reconstruction Amendments

  • Thirteenth Amendment (1865)

    • Abolishes slavery and involuntary servitude except as criminal punishment.

  • Fourteenth Amendment (1868)

    • Birthright citizenship, Privileges or Immunities, Due Process (extends to states), Equal Protection.

    • Implies a right to travel among states.

  • Fifteenth Amendment (1870 – not explicitly in slides but context)

    • Prohibits race-based voting denial.

  • Historical goal: Prevent “black codes” and secure newly freed peoples’ liberties.

  Jim Crow Era and Disenfranchisement

  • Plessy v. Ferguson (1896): Upholds “separate but equal,” enabling Jim Crow laws.

  • Techniques to suppress Black vote:

    • Literacy tests & understanding tests (with grandfather-clause loopholes for illiterate Whites).

    • Poll taxes (receipt in Figure 5.6 shows 1 tax in 1917 Jefferson Parish, LA).

    • White-only primaries.

  • Result: Widespread disenfranchisement until mid-20th-century reforms.

  Segregation (De Jure vs. De Facto)

  • De jure segregation: Mandated by law (e.g., separate schools, public facilities).

  • De facto segregation: Result of private decisions (housing patterns, economic factors).

  • Even under the Plessy “separate but equal” doctrine, facilities were overwhelmingly unequal (resource disparities favored Whites).

  • Iconic visuals

    • Burning of Freedmen’s school (Figure 5.3) demonstrates violent resistance.

    • Little Rock Nine (Figure 5.7): 1957 federal troops enforce integration.

  African-American Civil Rights Movement

  • Post-WWII direct action: Bus boycotts, sit-ins, Freedom Rides, voter-registration drives.

  • Confrontations

    • “Bloody Sunday” on Edmund Pettus Bridge, Selma (1965) – televised brutality galvanized support.

  • Court breakthrough: Brown v. Board of Education (1954) overturns Plessy in education; declares segregation inherently unequal. Implementation met with “massive resistance” for decades.

  • Legislative landmarks

    • Civil Rights Act of 1964
      • Bans discrimination in public accommodations, employment (creates EEOC), and unequal voting requirements.
      • Constitutional hook: Congress’s Commerce Clause power, not solely Fourteenth Amendment.

    • Voting Rights Act of 1965 (Figure 5.1 signing)
      • Suspends literacy tests, installs federal examiners, requires pre-clearance for jurisdictions with histories of discrimination.

  Impacts and Legacy

  • Civil Rights Movement catalyzed subsequent pushes for equality:

    • Women’s liberation, American Indian Movement, Chicano/Latino activism, Asian-American redress, LGBTQIA+ rights.

  • Demonstrated strategic spectrum: Non-violent civil disobedience (MLK) vs. separatist/self-defense rhetoric (Malcolm X) (Figure 5.9).

  • Contemporary backlash: White supremacist resurgence (Charlottesville “Unite the Right,” 2017; Figure 5.10).

  Women’s Suffrage and Women’s Rights

  • Early advocates: Elizabeth Cady Stanton, Lucretia Mott (Figures 5.11 & 5.12) emerge from abolitionist circles.

  • Milestones

    • Western territories grant partial suffrage in late 1800s.

    • Nineteenth Amendment (1920): Prohibits sex-based voting denial; still limited by racial disenfranchisement until 1960s.

  • Equal Rights Amendment (ERA)

    • Proposed 1923, passed Congress 1972, required 38 states; deadline lapsed 1982 though Virginia ratified in 2020 (map Figure 5.14).

  • Second-wave feminism (1960s–1980s): Focus on workplace equality, reproductive rights, credit/property, Title IX, combatting sexual harassment.

  Native American Civil Rights

  • Removal & Sovereignty Loss

    • Trail of Tears (1831–1838) (Figure 5.16 maps forced marches).

  • Citizenship progression

    • Indian Citizenship Act 1924 grants citizenship to Native Americans born after enactment; Nationality Act 1940 covers remaining.

  • Rights on reservations

    • Courts treat reservations as “quasi-sovereign”; Bill of Rights not automatically applied.

    • Indian Civil Rights Act 1968 extends many rights inside reservations.

  • Activism

    • AIM occupation of Wounded Knee (1973) – 71-day standoff; two deaths, 15 injuries (Figure 5.17).

  Asian-American, Latino/Chicano, and Immigrant Movements

  • Asian-American exclusion

    • Naturalization barred until 1943 for Chinese; broader restrictions loosened post-WWII.

    • WWII Japanese internment (Figure 5.20); redress movement leads to Civil Liberties Act 1988 (not in slides but relevant link).

  • Latino/Chicano activism

    • Focus: Farmworker rights (César Chávez, Dolores Huerta), bilingual education, end to segregation (e.g., Mendez v. Westminster, 1947), immigration reform.

  • Immigrant rights demands: Anti-trafficking, due process in deportations, Deferred Action (DACA) for undocumented youth.

  LGBTQ+ Rights

  • Early criminalization: All 50 states outlaw same-sex acts pre-1960s; laws also target gender-nonconforming dress.

  • Movement spark: Stonewall riots (1969) though not named in slides.

  • Legal milestones

    • Lawrence v. Texas (2003) invalidates remaining sodomy laws under Fourteenth Amendment privacy and liberty.

    • Obergefell v. Hodges (2015) mandates nationwide marriage equality (Figure 5.21 celebration).

    • Bostock v. Clayton County (2020) (referenced): Title VII bars employment discrimination based on sexual orientation or gender identity.

  • Continuing issues: Transgender healthcare access, military service, bathroom & sports participation, hate-crime protections.

  Cross-Movement Themes & Ethical/Practical Implications

  • Intersectionality: Many individuals belong to multiple marginalized identities; discrimination can be compounded.

  • Federalism tension: State autonomy vs. national enforcement (e.g., federal troops in Little Rock; pre-clearance under VRA).

  • Commerce Clause as civil-rights engine: Used when Fourteenth Amendment limits reach of Congress over private actors (e.g., CRA 1964 on businesses).

  • Scrutiny tiers as gatekeepers: Litigation strategy often hinges on framing classification into strict or intermediate scrutiny.

  • Backlash dynamics: Each advance (Reconstruction, Civil Rights, Marriage Equality) triggers counter-mobilization (Jim Crow, Massive Resistance, religious-freedom bills).

  • Moral arc narrative: Figures of emancipation (Lincoln – Figure 5.4), civil-rights icons (King, Lewis), and protesters illustrate the long struggle bending toward justice but requiring vigilance.