Civil Liberties & Civil Rights –CH 4 & 5

Civil Liberties & Civil Rights – Core Distinction

• Civil Liberties

  • Fundamental freedoms individuals possess before government exists.

  • Purpose: shield citizens from government interference.

  • Mnemonic: “Liberty = Freedom.”

• Civil Rights

  • Guarantees of equal citizenship & equal protection once government is formed.

  • Purpose: ensure government treats all groups equally.

  • Mnemonic: “Rights = Equality.”

Social-Contract “Doorway” Analogy (Why Liberties Pre-date Government)

• Imagine stepping from a lawless world → ordered state.

  • You willingly surrender some freedoms (e.g., to steal or kill) for security.

  • BUT certain core freedoms are too important to sacrifice; these become “civil liberties.”

• Government may limit dangerous conduct (speeding, robbery) but may not:

  • Compel you to abandon freedoms of religion, speech, press, etc.

Constitutional Location of Liberties

• Not in original 1787 text ➜ added in the first 10 amendments (1791) = Bill of Rights.

  • Essentially a "Bill of Liberties.”

• Political bargain

  • Federalists wanted ratification; Anti-Federalists demanded written guarantees.

  • Deal: adopt Constitution then immediately add amendments protecting liberties.

Selective Incorporation (Applying Liberties to States)

• Initially, Bill of Rights bound only federal gov’t.

• Through 14^{th} Amendment Due Process + Supreme Court decisions ➜ most provisions now constrain states case-by-case (“selective”):

  • 1925 – Gitlow v. NY (Speech)

  • 1931 – Near v. MN (Press)

  • 1940 – Cantwell v. CT (Free Exercise)

  • 1947 – Everson v. Bd. of Ed. (Establishment)

  • 1961 – Mapp v. OH (Search/Seizure)

  • 1963 – Gideon v. Wainwright (Counsel)

  • 2010 – McDonald v. Chicago (Bear Arms)

• Never incorporated: 3^{rd} Amendment (no quartering) – has never arisen in Court.

Snapshot of the Bill of Rights (Major Liberties)

• Am. 1: Religion (Establishment + Free Exercise), Speech, Press, Assembly, Petition.

• Am. 2: Bear arms (modern controversy, incorporated 2010).

• Am. 3: No quartering of troops (never litigated vs. states).

• Am. 4: No unreasonable search & seizure; warrant = probable cause + particularity.

• Am. 5: Self-incrimination, double-jeopardy.

• Am. 6: Speedy public trial, impartial jury, counsel, confrontation of witnesses.

• Am. 7: Jury trial in civil cases.

• Am. 8: No excessive bail/fines; no cruel & unusual punishment (death-penalty debates).

• Am. 9 & 10: Reserve unlisted rights/powers to people & states.

First Amendment Deep Dive

Establishment Clause (“Congress shall make no law respecting an establishment of religion”)

• No official national church or special financial/political favor.

• Competing interpretations

  • Wall of Separation (liberals/libertarians): gov’t must avoid even the appearance of endorsement.

  • Non-Preferentialism (many conservatives): gov’t may favor religion over non-religion but must remain neutral among sects.

• Cases & illustrations

  • Ten-Commandments display by a judge – violates wall-of-separation view.

Free Exercise Clause (“…or prohibiting the free exercise thereof”)

• Protects religious practice unless law is neutral & generally applicable.

• Key cases

  • 1992 – Church of Lukumi Babalu Aye v. Hialeah, FL

  • City bans Santería animal sacrifice while exempting kosher slaughter ➜ singled out religion ⇒ unconstitutional.

  • 1990 – Employment Div. v. Smith

  • Native American drug-counselors fired for ritual peyote use; denied unemployment.

  • Court: neutral drug law may be enforced despite incidental burden.

Freedom of Speech / Press → “Freedom of Expression”

• Govt. may not censor speech or publications; symbolic speech protected (e.g., flag burning at 1984 RNC).

• Obscenity not protected (reason profanity can be restricted on broadcast media).

Fourth Amendment – Search & Seizure

Core rule

• \text{Warrant} = judge-issued, based on probable cause, describes exact place & items.

• Incorporated via Mapp v. Ohio (1961) – created Exclusionary Rule: illegally obtained evidence \rightarrow inadmissible.

Four Major Exceptions

1. Plain View – officer lawfully present sees illicit item openly.

   • CA v. Ciraolo (1986): marijuana spotted from plane at 1{,}000 ft ➜ permissible.

   • Kyllo v. US (2001): thermal-imaging of home ≠ plain view (tech not in general public use).

2. Good-Faith – police rely on warrant/statute later found defective.

   • Herring v. US (2009): arrest based on warrant mistakenly left active; evidence kept.

3. Exigent Circumstances – urgent safety/emergency (gunshot scream hypothetical).

4. Automobile Exception – vehicles may be searched on probable cause they were used in crime.

Right to Privacy (Unenumerated)

• Derived from “penumbras & emanations” of Am. 1, 3, 4, 5, 9 (Justice Douglas, Griswold v. CT 1965).

  • Struck down contraception ban for married couples.

• Roe v. Wade (1973) built trimester framework balancing privacy vs. state interest.

• Dobbs v. Jackson (2022) overturned Roe; Court: Constitution does not protect abortion; states may regulate.

  • Justice Thomas concurrence: questions existence of constitutional privacy right itself (targets Griswold, Lawrence, etc.).

Shift to Civil Rights (Equality Focus)

Constitutional Foundations – “Civil War Amendments”

• 13^{th} (1865): Abolishes slavery; exception for criminal punishment; Congress enforcement power.

• 14^{th} (1868):

  • Citizenship Clause – born/naturalized = citizen.

  • Due Process Clause – no deprivation of life, liberty, property w/o due process.

  • Equal Protection Clause – states must treat all persons equally (bedrock of modern civil-rights litigation).

• 15^{th} (1870): Vote cannot be denied on race, color, previous servitude (men only).

Jim Crow Circumventions (Post-Reconstruction)

• Economic substitutes for slavery

  • Share-cropping – endless debt cycles = economic bondage.

  • Mass incarceration – exploit 13^{th} exception; convict leasing / chain gangs.

• Voter suppression tactics skirting 15^{th}

  • Literacy tests – increasingly absurd questions (e.g., “At what exact hour does presidential term end?”).

  • Poll tax – fee to vote hit poor blacks (and whites).

  • Grandfather clause – exempts anyone whose grandfather could vote (i.e., whites).

Separate-but-Equal Era

• Plessy v. Ferguson (1896) – segregation constitutional if facilities “equal.”

  • Reality: Courts ignored equal; rubber-stamped segregation.

  • Conceptually “unplugged” Equal Protection for ~60 years.

Civil-Rights Breakthrough

• Brown v. Board of Education (1954) – unanimous; separate is inherently unequal in education ➜ overturns Plessy.

  • Psychological evidence: Clark Doll Test showed harm to black children’s self-image.

• Resistance: “Impeach Earl Warren” movement; Southern massive resistance.

1960s Legislative & Judicial Milestones

• Civil Rights Act 1964 – bans discrimination by private businesses in interstate commerce.

• 24^{th} Amendment (1964) – abolishes federal poll tax.

• Voting Rights Act 1967 – outlaws racially discriminatory voting practices; imposes pre-clearance for jurisdictions with bad record.

• Loving v. Virginia (1967) – anti-miscegenation laws violate Equal Protection.

Modern Developments

• Shelby County v. Holder (2013) – strikes VRA pre-clearance formula; burden shifts to plaintiffs to prove discrimination.

  • Map: Entire AL, GA, MS, SC, VA (most), AZ, TX, LA, AK + specific CA, SD, NY, MI, NH counties were formerly covered.

• Obergefell v. Hodges (2015) – states must license same-sex marriage (links to Loving precedent) yet Court does not declare sexual-orientation a suspect class; equal-protection status remains unsettled.

Overarching Connections & Themes

• Separation of Powers & Federalism (earlier lectures):

  • Federal government used Commerce Clause & 14^{th} enforcement power to override state discrimination.

• Ethical & Practical Implications

  • Liberty vs. security (Fourth Amendment & surveillance tech).

  • Equality vs. local autonomy (Shelby County debate).

  • Role of social movements (NAACP, civil-rights activists) + courts + legislation working in sequence.

Critical Supreme-Court Case Bank (Quick Recall)

• Religion: 1992 Lukumi; 1990 Smith.

• Expression: 1989 Texas v. Johnson (flag burn).

• Search & Seizure: 1961 Mapp; 1986 Ciraolo; 2001 Kyllo; 2009 Herring.

• Privacy: 1965 Griswold; 1973 Roe; 2022 Dobbs.

• Civil Rights: 1896 Plessy; 1954 Brown; 1967 Loving; 2013 Shelby; 2015 Obergefell.

Formulas & Legal Tests (expressed in LaTeX)

• Probable cause: P(\text{illicit activity} \mid \text{facts}) > 0.5 (heuristic).

• Separate-but-Equal doctrine (Plessy): \text{Segregation}\;\Rightarrow\;\text{Constitutional}\;\text{iff}\; \text{Facilities}{\text{Black}} = \text{Facilities}{\text{White}}.

• Exclusionary rule condition:
  \text{Evidence}_{\text{illicit}} \;\text{admissible} \Longleftrightarrow \neg(\text{4A violation}).

Exam Tips

• Memorize key amendment numbers with one-word hooks: 1-Speech, 4-Search, 8-Punishment, 13-Slavery, 14-Equality.

• Use timeline: 1865→1900 (Jim Crow), 1954 (Brown), 1964-67 (landmark acts), 2013 (Shelby), 2022 (Dobbs).

• Be ready to apply exceptions (plain view, good-faith) to hypothetical fact patterns.

• Contrast Civil Liberties (Gov’t limits) vs. Civil Rights (Gov’t equality mandates) when framing essay answers.