Civil Liberties and Civil Rights Quick Review

Fundamentals of Civil Liberties and Civil Rights

  • Civil Liberties: Constitutionally established guarantees and freedoms protecting citizens, opinions, and property against arbitrary government interference.

  • Civil Rights: Policies designed to protect individuals against arbitrary or discriminatory treatment by government officials or individuals based on protected categories (e.g., race, color, sex, creed, age).

  • Constitutional Sources:

    • Original Constitution: Guarantees habeas corpus (protects against unlawful detention) and prohibits ex post facto laws (retroactive criminalization).

    • Bill of Rights: Enumerates individual protections such as speech, religion, assembly, petition, and protections in criminal proceedings.

    • Judicial Interpretation: Court rulings establish and clarify unwritten rights, such as the right to privacy.

The Bill of Rights and Selective Incorporation

  • Initial Scope: The Bill of Rights initially restricted only the federal government, not the states (Barron v. Baltimore, 1833).

  • Fourteenth Amendment: Includes the Due Process Clause and the Equal Protection Clause, establishing federal oversight over state actions.

  • Selective Incorporation: The judicial doctrine applying protections from the Bill of Rights to state governments on a case-by-case basis via the Fourteenth Amendment's Due Process Clause.

    • Began with Gitlow v. New York (1925), which incorporated freedom of speech and the press.

    • Contrasts with Total Incorporation, which advocated applying all Bill of Rights provisions to the states simultaneously.

  • Unincorporated Provisions: The Third Amendment, the Fifth Amendment grand jury indictment requirement, the Seventh Amendment civil trial guarantee, and the Eighth Amendment protection against excessive fines/bail.

First Amendment Freedoms

  • Establishment Clause: Prohibits government sponsorship, endorsement, or establishment of religion ("wall of separation").

    • Engel v. Vitale (1962): Prohibited mandatory or organized school prayer in public schools.

    • Lemon v. Kurtzman (1971): Established the three-pronged Lemon Test for state aid:

    1. Must possess a secular legislative purpose.

    2. Primary effect must neither advance nor inhibit religion.

    3. Must avoid excessive government entanglement with religion.

    • Prohibited in Public Schools: School-led prayer, graduation prayer, banning evolution, teaching creationism or intelligent design in science curricula, mandated posting of the Ten Commandments, teacher-led moments of silence for prayer, student prayer over PA systems, and mandatory recitation of the Pledge of Allegiance.

    • Permitted in Public Schools: After-school student-led religious clubs, equal after-hours building access for religious groups, voluntary student Bible study, and non-entangled public funding to private religious schools meeting Lemon criteria.

  • Free Exercise Clause: Protects religious beliefs unconditionally, while permitting regulation of harmful religious practices (Wisconsin v. Yoder).

  • Freedom of Speech:

    • Protected Forms: Pure speech, speech plus, and symbolic speech (Tinker v. Des Moines, 1969; flag burning).

    • Unprotected or Restrictable Speech:

    • Actions posing a "clear and present danger" (Schenck v. U.S., 1919).

    • "Fighting words" inciting an immediate breach of the peace (Chaplinsky v. New Hampshire, 1942).

    • Speech inciting imminent lawless action (Brandenburg v. Ohio, 1969).

    • Obscenity.

    • Libel (written defamation) and slander (spoken defamation).

  • Assembly and Petition: Congress may enforce content-neutral time, place, and manner restrictions (e.g., permits, restricting sensitive public spaces); private property is exempt from mandatory public access.

Due Process, Privacy, and Criminal Procedure

  • Fourth Amendment: Protects against unreasonable searches and seizures; requires warrants supported by probable cause.

    • Exclusionary Rule: Prohibits illegally seized evidence from trial use ("fruit of the poisonous tree"); incorporated to the states in Mapp v. Ohio (1961); includes the good faith exception.

    • Warrantless Search Exceptions: Emergencies (e.g., fires), prisons, arrests/within arm's reach of an arrestee, hot pursuit, movable crime scenes (cars, boats), airports, open fields for marijuana, border crossings, plain sight, and voluntary consent.

  • Fifth Amendment: Protects against self-incrimination and double jeopardy; establishes due process and requirements for eminent domain.

    • Miranda v. Arizona (1966): Accused individuals must be informed of Fifth and Sixth Amendment rights prior to custodial interrogation.

    • Eminent Domain: Government power to seize private property requires public use, just compensation (fair market value), and due process.

A multi-story residential building left standing in the middle of a newly paved roadway due to property rights disputes

  • Sixth Amendment: Right to counsel; incorporated to the states in Gideon v. Wainwright (1963).

  • Eighth Amendment: Protects against excessive bails, excessive fines, and cruel and unusual punishments.

  • Right to Privacy: Not explicitly written; interpreted from the penumbras and "zones of privacy" of the First, Third, Fourth, Ninth, and Fourteenth Amendments (Griswold v. Connecticut, 1965).

Civil Rights and the Equal Protection Clause

  • Reconstruction Amendments:

    • Thirteenth Amendment: Abolished slavery.

    • Fourteenth Amendment: Defined citizenship, established the Due Process Clause, and mandated Equal Protection.

    • Fifteenth Amendment: Guaranteed voting rights regardless of race, color, or previous condition of servitude.

  • Jim Crow Era Barriers: De jure segregation in public accommodations (Plessy v. Ferguson, 1896 "separate but equal") and systemic Black disenfranchisement via poll taxes, literacy tests, grandfather clauses, white primaries, and intimidation.

Racially segregated drinking fountains with signs denoting White and Colored

  • Civil Rights Movement Legislation & Precedent:

    • Brown v. Board of Education (1954): Ruled de jure school segregation unconstitutional under the Fourteenth Amendment.

    • Civil Rights Act of 1964: Enacted under the Commerce Clause and Fourteenth Amendment; banned discrimination in public accommodations, prohibited employment discrimination (race, color, national origin, religion, gender), established the Equal Employment Opportunity Commission (EEOC), cut federal grants to discriminating programs, and empowered the Justice Department to desegregate schools.

    • Voting Rights Act of 1965: Banned literacy tests and placed jurisdictions with voter turnout below 50% under federal supervision.

  • Judicial Standards of Review:

    • Strict Scrutiny: Applied to race, ethnicity, and religion; classification must serve a compelling public interest and use the least restrictive means.

    • Intermediate (Heightened) Scrutiny: Applied to gender; classification must serve an important government goal.

    • Reasonable Scrutiny (Rational Basis): Applied to age, wealth, and sexual orientation; classification must bear a rational relationship to a legitimate government goal.

  • Rights Expansion Across Groups:

    • Women: Nineteenth Amendment (1920; voting rights); Title VII (employment protections); Title IX (prohibits sex discrimination and sexual harassment in federally funded education); Equal Rights Amendment (passed Congress in 1972 but unratified).

    • LGBTQA+: Repeal of "Don't Ask, Don't Tell" in 2011; Obergefell v. Hodges (2015) affirmed the right to marry under the Fourteenth Amendment.

    • Disability & Age: Americans with Disabilities Act (ADA, 1990) requires "reasonable accommodations" in employment and public access; legislation prohibiting workplace age discrimination.

    • Latinos: Hernandez v. Texas (1954) ruled the exclusion of Mexican Americans from jury pools unconstitutional under the Fourteenth Amendment.