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Civil Rights Note to students: The best preparation for taking the reading quiz is to pay close attention to the key terms as you read. Each question in the question banks is directly linked to these key terms and phrases.

Chapter Focus Question: What is the difference between civil liberties and civil rights, and why are civil rights such a controversial topic compared to civil liberties?

Section Focus Question: What are the Civil War Amendments, and how important are they to issues of civil rights today?Key Terms:Difference between civil rights and civil liberties

Extension of civil liberties from ethnic to religion to gender to sexual identity 13th Amendment 14th Amendment in the 20th century Civil War Amendments Reed v. Reed

While civil liberties themselves are important shared values among most Americans, not all civil liberties are equally accessible to everyone living in the United States. As noted above, civil liberties mostly concern basic rights identified within the Bill of Rights. Civil rights are traditionally defined as the rights of citizens to particular freedoms and equality, and instead focus on the basic right to be free from unequal treatment. That said, both civil liberties and civil rights have their foundations in the amendments to the Constitution, and both sets of amendments were passed following damaging wars on US territory, when national unity was a prized goal.

While amending the Constitution is an arduous process, the five years following the Civil War saw three separate amendments ratified in close succession. Now known as the “Civil War Amendments,” these measures were part of the United States’ effort to re-unify the nation and establish citizenship rights previously denied to African Americans during the era of slavery. Over the course of the 20th and 21st centuries, the arena of civil rights has expanded beyond race to include additional protected categories like sex, religion, national origin, and sexual orientation through a combination of case law and legislation.

Civil War Amendments

One of the first objectives for a nation recovering from the Civil War was the permanent abolition of slavery. The Emancipation Proclamation only ended slavery in states that seceded; it was therefore critical to unify the nation with a single approach to the slavery question. The 13th Amendment abolished slavery throughout the United States and its territories: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. It was ratified seven months after the war ended.

The 14th Amendment has been of greatest importance in the contemporary evolution of civil rights. Speaking on the occasion of the Constitution’s bicentennial in 1987, Supreme Court Justice Thurgood Marshall characterized the 14th Amendment as a “new, more promising basis for justice and equality” in the United States. Section 1 in particular contains three important components, all of which have significant impact on 21st- century US politics:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State [sic] shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor to deny to any person within its jurisdiction the equal protection of the laws.

Thurgood Marshall on Equal Protection

Section Focus Question: How have the major clauses of the 14th Amendment been interpreted?Key Terms:US v. Windsor and same-sex marriage

Equal protection review Civil rights vs. civil liberties 14th Amendment Equal Protection Clause and 3 forms of scrutiny Rational basis test

The component of the 14th Amendment that has received the lion’s share of attention in case law and in legislation is “equal protection of the law.” It has played a role in a variety of different cases, including racial discrimination in Brown v. Board of Education (1954), sex discrimination in Reed v. Reed (1971), reproductive rights in Roe v. Wade (1973), and even voting cases like Bush v. Gore (2000). More recently the Supreme Court’s 2013 decision in United States v. Windsor declared sections of the Defense of Marriage Act unconstitutional and afforded gay and lesbian couples the right to marry based on the conclusion that the act violated the Equal Protection Clause of the 14th Amendment.

In these cases the Supreme Court has established three tiers of review for analyzing whether unconstitutional denials of equal protection or due process of the law has occurred. In each case, the state or federal law at issue must be justified. For cases where distinctions or differential treatment occurs on the basis of protected characteristics like race or ethnicity, the court applies what is known as the strict scrutiny standard of reviewing the law at hand. In this context the government is challenged to prove that there is a compelling interest for any law that either expressly or implicitly treats groups differently on the basis of race or ethnicity. For example, a policy promoting federal workers solely on the basis of their race or

ethnicity over other equally qualified workers of a different race or ethnicity would be expressly forbidden without a compelling interest.

Equal Protection Review

For cases where differential treatment occurs on the basis of protected characteristics like sex or sexual orientation, the court applies what is known as intermediate scrutiny, which recognizes some state discretion as well as the need to be judicious in protecting individuals from discrimination. While advocates have sought to have sex and sexual orientation treated with strict scrutiny, the courts have not yet approved such a strategy because members of the judiciary can still envision contexts where bona fide occupational qualifications might produce such outcomes.

Think about what the requirements should be for a person who wants to become a firefighter. The image that many people have of firefighters is the brave person saving someone by carrying that person out of a burning building. Most would then say that they would want a male firefighter not because women aren’t equal but because men are physically stronger than women. Using this logic, requiring a certain amount of strength as a qualification for being a firefighter makes sense. Thus, certain sex-based distinctions might make sense in some arenas, even as individuals have a right to protection from discrimination. Other arguments suggest that because the original intent of the amendment was to correct racial inequality, and not to correct other forms of discrimination, then applying the 14th Amendment to other forms of equality requires a separate standard.

The most permissive standard for state laws is the rational basis test, where the court evaluates the state’s explanation to ensure that the laws avoid arbitrary or irrational treatment. For example, distinctions on the basis of economic class are evaluated using this standard. States are permitted to give access to certain programs based on means-testing — making sure that those who truly need public funds for scholarships, food stamps, or other government subsidies are receiving it. While this means that the government treats

poor people and middle or upper class people differently, courts have consistently approved these kinds of strategies.

Surviving Equal Protection Review

Most prominent civil rights cases of the 20th and 21st centuries have been test cases put forth by organizations and social movements interested in enhancing the civil rights protections for groups who have traditionally been denied such protections. These groups’ efforts to gain effective access to their guaranteed constitutional rights have largely been controversial since the ratification of the Civil War Amendments in the 1860s. If we take a glance at public opinion polling, we find that often questions of civil rights appear to be more controversial than questions of civil liberties. It is unclear why that distinction remains so many years later. Perhaps because the guarantees contained in the Civil War Amendments were ratified at the time of the United States’ most severe polarization. Another possible explanation, however, lies within the realm of federalism.

Each of the Civil War Amendments featured virtually identical sections explicitly reinforcing Article VI’s Supremacy Clause: “Congress shall have the power to enforce this article by appropriate legislation.” The focus of the 14th Amendment in particular is tied to state action in a way that brought already tense federal-state relations into open conflict. Whether the topic is school desegregation in the 1950s and 1960s or same-sex marriage in the 21st century, court-mandated policies often require follow-up cases in order to effectively implement changes in the states. For example, the Supreme Court’s landmark Brown v. Board of Education (1954) decision declared racial segregation in public education unconstitutional and racially discriminatory. It ordered implementation of state-based public school desegregation remedies “with all deliberate speed.” However, it did not specify the precise meaning of “all deliberate speed.” One year? Two years? Five or 10 years? It also did not specify or require practices or policies of desegregation.

This latter omission became the subject of another case, Swann v. Charlotte-Mecklenburg Board of Education, 17 years later in 1971. At issue was the policy tool used by the

Charlotte, North Carolina, school district to implement the Brown decision: busing students to schools outside their neighborhoods. In a unanimous opinion, the Supreme Court approved the use of busing to resolve problems of segregation. This court approval influenced other school districts, including Detroit and Boston, to implement busing, which sparked controversy and backlash from white parents who focused on their inability to choose for themselves who would attend their local schools.

Swann v. Charlotte-Mecklenburg Board of Education, 1971

The courts became a battleground for debates about what constitutes an “equal education,” producing a host of policies that have shifted and changed over time regarding racial equality and education. State departments of education have consistently struggled to develop policies that are simultaneously effective, popular with constituents and cost-effective despite the mandate of the US Supreme Court in Brown. Thus racial equity in education remains an ongoing area of challenges for a federal system like the United States.

Section Focus Question: How have other groups and areas of American life been affected by the 14th Amendment?Key Terms:Arizona SB 1070 and immigration laws

Executive Order 9981 Women in the military Exercise of civil liberties and civil rights Immigration disputes and the 14th Amendment Birthright Citizenship Poll

However, civil rights issues like education are not simply regulated by the courts. Congress and the president also shape access to opportunities previously denied to certain groups. The integration of the military offers an interesting example of how both branches advanced civil rights toward racial and gender equality. In 1948, President Harry S. Truman issued

Executive Order 9981 that declared “equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin.” As implemented, this executive order ended the military’s policy of racially segregating troops into separate units and preventing access to job opportunities segregated by race, affecting more than 1,000,000 African Americans who had served in all theaters of World War II.

African American Participation, US Armed Forces, WWII

As with African Americans, women had been part of war efforts in the United States since the American Revolution, serving in noncombat roles (usually medical). Following the training of over 400,000 women of all races in World War II, the armed forces gradually integrated women during the Korean and Vietnam Wars, again in noncombat roles. Increasing numbers of women entered the military with the opening of the Reserve Officer Training Corps (ROTC) to women in 1972, and the acceptance of female cadets into the service academies (West Point, and the Air Force, and Naval Academies) in 1976. All of this activity occurred within the executive branch over a 50-year period.

Congress finally repealed the laws that banned women from flying in combat and from duty on combat ships in 1991 and 1993, respectively, around the time of the first Gulf War. Yet despite these changes, it took until 2015 for the implementation of another executive branch directive. The United States military has just implemented equal access for women to all combat roles in all four branches of the military: the Army, Navy, Air Force, and Marines. This includes access to their elite training squads like the Navy Seals or Army Rangers.

In the 20th century, many who objected to women serving in the military argued that certain physical requirements for combat specialties were necessary in order to preserve “military effectiveness.” There have been many technological advances over time that have changed the need for brute strength in combat. Therefore, these occupational qualifications have replaced ones that do not rely on sex-based biological differences. Men and women can operate drones from a remote location equally well, for example. Women have now fought side-by-side in Iraq and Afghanistan under the same life-threatening circumstances with little

discernible impact on “unit cohesion,” the idea that military units must function like a well-trained team. In the 20th and 21st centuries, objections to women in combat roles have lingered based on outdated understandings of “unit cohesion” as a specifically male bond.

While this logic supports the intermediate scrutiny standard for the courts, the integration of the military at the federal level brought changes to many state-level communities, particularly those who still adhered to the racial and gender norms of Jim Crow. Yet the focus on Section 1 of the 14th Amendment, traditionally assumed to apply to African Americans without controversy, has come under scrutiny in recent years regarding its applicability to Americans of immigrant background. In the past 20 years, birthright citizenship, this third generally ignored (relative to equal protection and due process) part of Section 1, has been part of a larger debate about civil rights for immigrants. Immigration policy has changed tremendously over the course of US history. But over the last 30 years there has been an absence of comprehensive immigration policy change at the federal level. This has created a vacuum, allowing several states to step in and handle some immigration policy questions.

Birthright Citizenship Poll, Pew Research Center, 2015

Some states have attempted to “secure” themselves by passing laws that make their states inhospitable places for immigrants, while other states have sought to better integrate immigrants into their states. The Supreme Court’s Arizona v. United States (2012) concerned Arizona’s SB 1070 law, which fell on the “security” side of this debate. Senate Bill 1070 created two new state crimes: it became a crime to not carry immigration papers and produce them upon request, and it also became a state crime to work without authorization if a person was a noncitizen. The third component gave state police the power to arrest individuals without a warrant if they were accused of offenses that qualified them for deportation. The Supreme Court upheld an injunction against implementation of three aspects of SB 1070 due to matters of federalism, determining that Arizona sought to create its own immigration policy with these measures, which is expressly forbidden by federal law.

Arizona SB1070

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CC Valle del Sol v. Whiting (2014) also challenged SB 1070, but on the grounds it violates the Equal Protection Clause of the 14th Amendment. The Supreme Court upheld Arizona’s mandate that police ascertain the immigration status of someone who has been arrested or detained when there is “reasonable suspicion” that the person is not in the country legally.

Senate Bill 1070 and the Supreme Court decisions that followed it clearly illustrate the ongoing challenges of untangling questions of federalism, civil liberties, and civil rights. While all three branches of the federal government and each of the state governments are responsible for addressing the needs and problems of those who live in the United States, the ongoing complexity of the questions are clear. Should questions of birthright citizenship apply to new contexts, when the original intent of the 14th Amendment was to ensure the citizenship of newly freed black slaves? Should citizens and noncitizens have equal treatment in each of the 50 states as well as at the federal level? How should states respond when the federal government fails to act on pressing issues like immigration reform for long periods of time? Is there a right to privacy for every person that prevents the government from putting us under surveillance without probable cause?

These questions and many others are why US politics is an ongoing experiment in democracy — questions are never permanently settled in a democracy. The federalism structure of the United States thus requires participation by all who live within its borders — whether through voting, as parties in court cases, or through public protest and civic engagement. Without such participation, the structure, as well as the liberties and freedoms it seeks to protect, will not prevail.

Challenges of Federalism, Civil Liberties, and Civil Rights