Civil Rights & Civil Liberties

Introduction & Big Picture

• Lecture focus: Civil Rights and Civil Liberties in the United States
  • Brief historical overview ➔ development through struggle, not granted "at birth" of the republic
  • Core tool for analysis: Supreme Court case law and competing theories of constitutional interpretation
• Two dominant interpretive frameworks referenced throughout
  • Originalism
  • Living-Constitution ("living document") theory
  • Students often find themselves switching perspectives issue-by-issue; pure consistency is difficult

Why a Bill of Rights?

• Protect Jefferson’s “inalienable rights” & Madison’s “great rights of mankind”
  • Enlightenment roots: belief in natural rights
• Shield individuals from any government or majority that would violate core liberties
• Anti-Federalist pressure ➔ explicit textual limits on new federal power (produced the first $10$ amendments)
• To appreciate its necessity, the class examined an era lacking such protections

Historical Case Study: Mary Dyer (Religious Liberty in Colonial Massachusetts)

• Context
  • Congregationalist (Puritan) Boston, $1660s$
  • Theocracy—no separation of church & state; pastors wielded civil power
• Story arc
  1. Dyer experiences a "born-again"‐style conversion to Quakerism (inner-light theology, pacifism, gender equality)
  2. Begins proselytizing ➔ pamphlets, public testimony, in-home Bible studies with men present
  3. Local laws criminalize non-Congregational worship & female teaching authority
  4. Charged with multiple offenses: heresy, refusing ministerial authority, proselytizing, leading mixed-gender study, “erroneous” doctrines
  5. Punishments: beating, maiming, repeated banishment
  6. She persistently returns, brings Quaker literature & co-believers, viewed as “demon-possessed” by authorities
  7. Ultimate penalty: public execution (martyrdom)
• Ethical/Legal significance
  • Demonstrates world without recognized civil liberties
  • Illustrates need for later First Amendment guarantees: free exercise, free speech, press, assembly, and separation of church & state
  • Foreshadows Eighth Amendment concept of “cruel and unusual punishment”
  • Incident cited by Enlightenment-minded Founders (e.g., Jefferson) when crafting new system

Text of the First Amendment – Interpretive Exercise

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

• Question posed: Which entity is expressly limited? ➔ Congress
• Implication: Does the text bind only the federal legislature, or all governments?
  • Initial historical answer: Only Congress (federal level)

Barron v. Baltimore ($1833$)

• Facts
  • John Barron owned a profitable wharf in Baltimore harbor
  • City construction diverted sediments, rendering wharf unusable
  • Cited Fifth Amendment Takings Clause: “private property [shall not] be taken for public use, without just compensation.”
• Holding (unanimous)
  • Chief Justice Marshall: Bill of Rights restricts federal government only
  • Because injury came from city (state actor), no constitutional remedy ➔ Barron loses
• Doctrinal impact
  • Cemented dual-sovereignty view: states free from Bill-of-Rights constraints
  • Result: States could (and did) enact laws we’d now see as blatantly unconstitutional, e.g.
  • Warrantless searches
  • Censorship of anti-government speech
  • Direct funding of preferred churches
  • Bans on firearm ownership, pornography, etc.
  • Demonstrated Jefferson’s incorrect assumption that federal—not state—power would be primary liberty threat

Post-Civil War Shift: The Fourteenth Amendment ($1868$)

• Part of Reconstruction Amendments ($13$, $14$, $15$) aimed at protecting freed slaves
• Key Clauses (selected text)
  1. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”
  2. “Nor shall any state deprive any person of life, liberty, or property, without due process of law…”
  3. “…nor deny to any person within its jurisdiction the equal protection of the laws.”
• Signaled constitutional authorization to restrain state governments—but practical effect would lag almost $100$ years

Early Fourteenth-Amendment Litigation: Bradwell v. Illinois ($1873$)

• Parties & Facts
  • Myra Bradwell: suffragist, legal scholar, married to attorney
  • Illinois statute: “Any adult of good character may practice law.”
  • Application denied solely because she was a woman ➔ Bradwell sues, citing $14^{th}$ Amendment Privileges/Immunities Clause
• Supreme Court Decision
  • Majority: $14^{th}$ Amendment does not protect right to practice a profession
  • Justice Joseph Bradley’s concurrence (infamous):
  • Women possess “natural and proper timidity and delicacy” making many civil occupations unsuitable
  • Women’s “paramount destiny and mission” = wife & mother — “law of the Creator.”
• Consequences
  • Demonstrated that text alone insufficient; judicial interpretation controls outcomes
  • Court refused to incorporate professional-liberty concept; equal-protection argument not yet viable

Concept & Process of Incorporation

• Definition: Judicial application of Bill-of-Rights guarantees to the states via the Fourteenth Amendment
• Mechanism: Supreme Court decisions that “select” specific rights and declare them fundamental to ordered liberty, thus binding on states
• Timeline
  • Begins gradually in early $1900s$ (e.g., free speech cases during WWI era)
  • Major wave in $1960s$ (Earl Warren Court): criminal procedure rights, privacy, etc.
  • Still ongoing; Court continues to decide which rights are fully incorporated (e.g., recent Second Amendment and confrontation-clause jurisprudence)
• Result today: Vast majority of first $8$ amendments now restrict both federal and state governments

Broader Connections & Implications

• Human-rights evolution: what counts as “cruel and unusual” or “fundamental” changes over time (e.g., punishment norms, technology-driven privacy concerns)
• Struggle continues: Interpretation battles (originalism vs. living view) remain central to controversies—speech on social media, surveillance, reproductive rights, gun control
• Importance of vigilance
  • Rights require continual defense in courts & politics
  • Knowledge of historical trajectory (e.g., Mary Dyer, Barron, Bradwell) sharpens appreciation for today’s protections

Key Takeaways / Study Checklist

• Distinguish civil rights (equality claims) vs. civil liberties (freedom from government interference)
• Memorize pivotal cases & holdings
  • $1833$ Barron v. Baltimore ➔ Bill of Rights applies to feds only
  • $1873$ Bradwell v. Illinois ➔ early failure of $14^{th}$ to protect women’s professional rights
• Understand Fourteenth Amendment clauses: Privileges/Immunities, Due Process, Equal Protection
• Define incorporation and outline its century-long progression
• Recognize interpretive theories and their practical influence on outcomes
• Be prepared to match specific Bill-of-Rights protections to historical violations (e.g., Mary Dyer & First/Eighth Amendments)