American Government
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8 Civil Liberties and Civil Rights
Learning Objectives
By the end of this chapter, you should be able to do the following:
Define the concept of civil liberties and explain how civil liberties are different from civil rights Explain why civil liberties are important to a democracy Explain how American civil liberties have evolved over time, especially with regards to the rights of the accused, the separation of church and state, and the right to privacy Trace the evolution of the American civil rights movement from one of removing barriers to participation, i.e., voting and education to guaranteeing equality as a group result Analyze the difference between the rights of individuals and the obligations of
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The USA PATRIOT Act (full title: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001), signed into law by President George W. Bush, is intended to help the government employ terrorism‐ fighting tools that some say infringe on individual civil liberties.
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Following the attacks on the World Trade Towers and the Pentagon on September 11, 2001, President Bush launched a war on terrorism. This war took the U.S. military to Afghanistan and ultimately Iraq. It also resulted in the creation of the Department of Homeland Security and, even more importantly, passage of the USA PATRIOT Act of 2001. As a wartime measure, the PATRIOT Act allowed federal authorities to arrest and hold suspected terrorists without filing formal charges. Individuals detained on suspicion of terrorism were not entitled to an attorney, nor if an attorney inquired at the request of a family member was the family member entitled to know why the suspect was being held. It also became federal policy that suspected terrorists who were charged would be tried in military, rather than civilian, courts. Immigrants from Middle Eastern countries, including those who had obtained U.S. citizenship, found themselves under greater scrutiny and at risk of detention and even deportation without being afforded the rights traditionally enjoyed by Americans.
One of the fundamental characteristics of the American political system is that our government is one of laws, and citizens have rights. At a minimum, they have the right, if accused of a crime, to due process: to know what the charges against them are and to face their accuser. Those charged are entitled to a trial where guilt has to be proven on the basis of evidence. The PATRIOT Act appeared to turn these fundamental rights on their head. Now Americans could be imprisoned on the basis of suspicion. Critics were quick to point out that not only was this a violation of basic civil liberties, but it made a mockery of the American Constitution. If we allow the Constitution to be stripped of its substance in the name of national security, then what exactly are Americans defending while waging a war? For the act's proponents, this was precisely the point. Civil liberties are never absolute but are balanced against the public interest, which in this case was a matter of national self‐defense. If the nation falls apart, then the Constitution is rendered a meaningless document.
In this chapter, we will explore the meaning of civil liberties and we compare them to civil rights; we also trace the ways the Supreme Court has expanded these liberties and rights for Americans over the course of the nation's history.
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8.1 The Meaning of Civil Liberties and Civil Rights The concept of civil liberties is sometimes confused with that of civil rights, but they are two different things. Civil liberties generally refers to the personal freedoms that all Americans enjoy thanks to the Bill of Rights—for example, the rights to freedom of speech, freedom of religion, and the freedom to assemble. It also generally includes the right to privacy. These rights cannot be abridged by the federal government. Civil rights, on the other hand, pertain to the right to be free from discrimination, whether on the basis of gender, race, religion, sexual orientation, or something else. Equal access to voting rights is an example of a civil right that has been fought for by different groups over the years.
A liberty generally refers to our freedom to do as we please without any restraints. To talk about a liberty is to also talk about an obligation on the part of others, whether it be individuals or the government, to respect that liberty by not interfering with it. A right, in contrast, is generally a designation given to an interest that we would like to protect. A right, then, is a legal definition that effectively creates a zone of protection around an interest, and that interest can, of course, be a liberty interest.
The U.S. Constitution's Bill of Rights guarantees some basic civil liberties, such as freedom of speech, freedom of religion, protection against unlawful searches and seizures, and jury trials. In providing for the election of representatives to Congress, the Constitution even hints at the right to vote. But in the nation's early years, state governments were much more of a daily presence in Americans' lives than the federal government. The Bill of Rights, as you may recall from the debate between the federalists and anti‐federalists in Chapter 2, was not intended to protect our rights to anything. Rather, it was designed to protect state sovereignty against encroaching national authority. It was not until 1868, following the Civil War, that the Fourteenth Amendment was passed as a vehicle for applying the protections in the Bill of Rights to the states too.
The difference between civil liberties and civil rights is also the difference between the rights of individuals and the rights of groups. When we speak of civil liberties, we are often talking about individuals' rights to freely practice religion or to have fair trials with legal representation. When we talk about civil rights, we are often talking about the rights of a group like African Americans to vote or to not be discriminated against in workplaces, education, and accommodations. Arguably, the civil rights of a group begins with the civil liberties of an individual. If a group is being discriminated against, members of these groups may not enjoy the same civil liberties as everybody else.
Obligations of Government to Protect Citizens
Civil liberties need to be protected because they are essential to the workings of democratic governance. In other words, civil liberties generally have a purpose, sometimes beyond the purpose of ensuring individual integrity and dignity. One purpose that figures prominently in discussions of civil
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liberties in the United States is that without protecting individual rights, the United States as a democracy cannot function properly. For example, if an individual's right to free speech, which includes the right to criticize government, is not protected, then government is not held accountable. Democracy requires government accountability to the people.
Civil rights in the United States are often defined as the obligations of government to guarantee equal citizenship and to protect citizens from discrimination by other citizens, organizations, and government agencies. The issue of discrimination, however, is a complicated one. While government may not show preferences for one group over another, private individuals and groups are not restricted in the same way unless they are receiving public monies or running establishments that serve the public, like hotels or restaurants. A private college that does not want to allow gay students to live in its dorms, for instance, can control its own housing policy and refuse gay students this right. However, the government then has the right to deny the school access to federal monies, including for research, student aid, and loan guarantees.
Unlike private institutions, all public institutions must provide equal rights to everyone. A governmental obligation to protect a citizen's right to vote, for example, means that a citizen cannot be prevented from voting either by private individuals or public officials, and that each person's vote must be counted equally. In the United States, we follow the principle of "one person, one vote," which means that persons A and B each have one vote as opposed to A having the equivalent of 10 votes while B has only one. If we define the right to vote as a basic civil right, and then one state attempts to erect barriers to voting, as many Southern states did against African Americans prior to the 1965 Voting Rights Act, government then has an obligation to remove those barriers. Moreover, if the government fails to do so, it is not treating its citizens equally.
The Fourteenth Amendment's Definition of Citizenship and Equal Protection
The roots of civil liberties in the U.S. Constitution lie in the language of the Bill of Rights, but as previously mentioned, they only applied to the national government. The vehicle for applying them to the states lies in the Fourteenth Amendment. The Supreme Court has used that amendment to nationalize the Bill of Rights and extend to the states what were originally limitations on the federal government. Recall that the amendment was passed as part of Reconstruction after the Civil War; at its core lies the definition of citizenship. Section 1 states: "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." This was a direct response to the Dred Scott ruling that said that slaves could not be considered persons, let alone citizens. By definition, a person born in the state of Alabama was to be considered a citizen of the United States, as was one born in the state of Massachusetts. The Fourteenth Amendment made citizenship a national right as well as a state right.
The amendment goes on to say: "No State 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,
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If the Supreme Court recognizes gay marriages as a civil right, then it would fall under the protection of the Equal Protection Clause of the Fourteenth Amendment; if marriage is guaranteed to all individuals, then it cannot be denied to one group of people.
Fourteenth Amendment Extends First Amendment Guarantees to States
liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."
There are two components to this statement. The first is referred to as the Privileges and Immunities Clause and the second is the Equal Protection Clause. The Privileges and Immunities Clause means that whatever privileges and immunities one has as a citizen of the United States cannot be taken away by a state that refuses to recognize them. If person A is considered a citizen of the United States, he does not lose his citizenship because he moves from New York to South Carolina. This would mean that if the Supreme Court were to decide that gay marriage is a constitutional right, a person married in New York who moves to South Carolina must have his or her marriage recognized by the state of South Carolina. The Privileges and Immunities Clause effectively allows the Supreme Court to apply whatever liberties
individuals enjoy to the states.
The Equal Protection Clause actually reinforces the Privileges and Immunities Clause. It requires that individuals be treated equally. The language typically used in constitutional jurisprudence is that government may not create "invidious" classifications of people. If, for example, Congress creates a public assistance program for poor people whose qualifications for assistance are based on need, it cannot deny assistance to mothers because they are gay. That would, in effect, put gay mothers into a category of being "other" or different from all the other mothers qualifying for assistance, which would be an invidious classification. Once government does this, it is not treating people equally.
The status of gay rights under these two clauses is one line of reasoning used to argue for the basic civil right of gay marriage. When the Equal Protection Clause is read alongside the Privileges and Immunities Clause, we would have the following: Supposing the Supreme Court recognizes gay marriage as a right, the state of South Carolina could not refuse to recognize the legitimacy of that marriage because to do so would be to deny a couple who moves from New York to South Carolina equal protection under the law. If marriage is
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How do you protect individuals and minorities against the danger of state‐based legislation that will violate their rights? The equal protection and due process clauses of the Fourteenth Amendment allow the Supreme Court to maintain freedom of expression and freedom of the press over any state law that might violate it.
considered to be a basic right, regardless of whether one is straight or gay, to deny gay people the right to marry is to create an invidious classification.
When the Privileges and Immunities Clause is combined with the Citizenship Clause, the Fourteenth Amendment makes a very powerful statement about individual liberties and, by extension, civil rights. These two clauses together mean that one born any place in the United States is considered a citizen and cannot lose that citizenship when traveling to a part of the country that chooses not to recognize it. This is critically important because the Fourteenth Amendment follows the Thirteenth Amendment, which abolished slavery. Together, these two amendments guaranteed that a former slave who was given freedom through the Thirteenth Amendment would be a citizen of the United States.
The Fourteenth Amendment also precedes the Fifteenth Amendment, which states: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." This meant that a citizen of the United States could not be denied the right to vote by any state on the basis of race, because to do so would be to deny him or her equal protection under the law.
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Obscenity…Is It Free Speech?
In terms of freedom of expression, equality interests are often at odds with liberty interests when it comes to obscenity. The trick with obscenity is to define it. The written word is rarely labeled as obscene, and fewer and fewer visual materials fall within this category. Attempts by feminists to restrict pornography on the grounds that it is a multi‐million dollar industry that degrades women and undermines their civic equality has fallen victim to free speech rulings.
8.2 Our Basic Civil Liberties As Americans, we take for granted that we have the right to free speech, to exercise freedom of religion, and basic rights to due process. These are the core of our basic civil liberties. In addition, we assume that we have a basic right to privacy. All of our core civil liberties are stated or implicit in the Bill of Rights, and all are essential if the concept of human agency is to have any real meaning. But as was the case with the Supreme Court having to carve out a role for itself (as we discussed in the last chapter), so too has the Court needed to define the nature of our civil liberties.
Right to Free Speech
Most of us would agree that the right to free speech is a fundamental civil liberty. The First Amendment makes it clear that Congress shall make no law abridging the right to free expression. As we observed in Chapter 2, the First Amendment applied only to the federal government, and given the language of the Tenth Amendment the states could limit speech. But the Fourteenth Amendment provided the vehicle to apply that limitation to the states on the basis of the Equal Protection Clause. After its ratification, no state could abridge anyone's right to speak because to do so would be to deny them rights enjoyed elsewhere.
Free speech is an important right, but it is by no means an absolute one. There are circumstances when limitations can be placed on speech, especially when it may cause harm to others. In his famous 1859 essay On Liberty, John Stuart Mill argued that the state could interfere with individual liberty if a person's action in any way harmed himself or others. He spends much of this work talking about the appropriateness of restricting speech. However, Mill also takes the position that speech that hurts people's feelings or that some find offensive is not really harmful and should therefore be allowed. In fact, he argues that offensive speech is part of the free marketplace of ideas that sustains democratic
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In the ruling for Schenck v. United States, Justice Oliver Wendell Holmes helped set up the idea of the clear and present danger test.
government. If people are allowed to say things that are offensive, the truth will emerge.
Free speech is also critical to the concept of individuality. It supports the core American values of life, liberty, and the pursuit of happiness because the life that a person chooses to live is a form of free expression. If one is free to think about things as an expression of his or her individuality, it is only logical that he or she would be entitled to free speech as an extension of human agency.
However, we are all familiar with the well‐known prohibition of yelling fire in a crowded movie theater. In the rush to get out, which might turn into a stampede, individuals could conceivably be trampled to death. But the point raised in this scenario—specifically, that free speech can cause harm—only complicates the issue of free speech. By Mill's standard, for instance, members of the Ku Klux Klan marching in a heavily African American neighborhood and promoting hate speech might be considered simply offensive. But, as in the case of the crowded movie theater, if the march leads to physical violence, then it extends beyond offensive to harmful.
The Supreme Court has tried to walk the line between offense and harm several times. Two court cases decided in the aftermath of World War I, for example, solidified the standard by which speech could be measured as harmful.
Schenck v. United States
In its 1919 Schenck v. United States ruling, the Supreme Court addressed a free speech issue that arose during World War I. Charles Schenck was general secretary of the Socialist Party and, as such, printed and distributed 15,000 leaflets encouraging those who had been drafted to resist serving in the military and those who were serving to disobey orders. The government charged him with violating the 1917 Espionage Act, by causing insubordination in the military forces and obstructing the recruitment and enlistment of soldiers. Additionally, he was charged with unlawfully using the federal mail service to disseminate harmful speech.
In its ruling, the Supreme Court said that free speech could be limited if it violated the clear and present danger test. Writing for the Court, Justice Oliver Wendell Holmes stated: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured. . . ."
Holmes made it clear that what caused the danger was not the speech per se, but the fact that the speech occurred during a time of war. He echoed the Supreme Court of the Civil War that was willing
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to set aside constitutional protections during emergency situations.
Abrams v. United States
Schenck was not the only speech case to arise from World War I. Abrams v. United States, also decided in 1919, was similar to Schenck in that the Court again asserted that there were limits to free speech. But in this case its reasoning was not that speech could create a clear and present danger; instead, it was that it could create a bad tendency.
The government accused Jacob Abrams and four other defendants, all born in Russia, of circulating leaflets opposing American involvement in World War I. Among other things these leaflets called for workers of the world to rise up in revolution against capitalists. The Court concluded that the primary purpose of the leaflets was to aid the cause of the Russian Revolution. Writing for the Court, Justice John Clarke said:
Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States.
In other words, even if the purpose of the speech was not to undermine America's war effort as it was in Schenck, it might still have had that effect and as such it could not be allowed because of the bad tendency that it would create.
This case was particularly significant because Justice Holmes dissented. Now Holmes found the majority's argument to be too much, as its implication was quite clear: If you do not like what one has to say and you have the power to stifle it, then it is only natural to some to impose limits to free speech. As he put it in his dissent: "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition."
Only a few years later the Court would come to reject the bad tendency test for what came to be known as preferred freedoms, the idea that it is best to presume in favor of individuals' liberties. Preferred freedoms grew out of a concerted effort by Justices Holmes and Justice Louis Brandeis to prevent cases from being lowered to the bad tendency level. In other words, the concept grew out of an attempt to create an exact set of standards that speech would have to be measured against to create a "clear and present danger."
Holmes and Brandeis found this opportunity in the 1927 case of Whitney v. California. Charlotte Anita Whitney was prosecuted under California's Criminal Syndicalism Act, which prohibited unions and industrial workers from seeking to gain control of production through general strikes, sabotage, or other unlawful means. She was found guilty of organizing and participating in a group that was advocating, aiding, teaching, and abetting criminal syndicalism (an alternative to socialism). To criminalize
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Increased Protection for Free Speech
Protections for free speech increased throughout the 20th century. In reviewing cases that arose from the Espionage Act in World War I, the Supreme Court established a "clear and present danger" standard. Even
syndicalism was to, in effect, liken Whitney's speech to advocating the violent overthrow of the American way of life. The Supreme Court unanimously upheld the California law, but in his concurring opinion, Justice Brandeis put forth the basic principles of free speech that would serve as the basis of preferred freedoms. He wrote:
To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be a violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law‐breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.
In other words, unless it could be demonstrated that speech would be so dangerous that society would be so immediately and irreparably harmed, there was to be a presumption in favor of our preferred freedoms.
Texas v. Johnson
The idea that government should presume in favor of individual liberties was tested in the 1989 case of Texas v. Johnson. In this case, Gregory Lee Johnson burned the American flag in front of the Dallas City Hall in 1984 to protest the policies of the Reagan administration and American corporations. He was convicted for desecrating the flag, but the Texas Court of Criminal Appeals reversed the conviction on the grounds that it violated the First Amendment.
The Supreme Court agreed, ruling that burning the American flag was constitutionally protected free speech. Speaking for the majority, Justice Brennan asserted: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply
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during the McCarthy era, the idea of criminal prohibitions against anti‐government speech was not a factor. Flag‐burning incidents so repugnant to most people in this country are examples of the right of U.S. citizens to say unpopular things.
L. B. Sullivan (second from right) celebrates his lawsuit victory against the New York Times. The Supreme Court determined that for free speech to be considered libel, it has to be false, do damage to one's reputation, and involve malice.
because society finds the idea itself offensive or disagreeable." Brennan's argument was that the flag is merely a symbol of the Constitution. If we destroy the Constitution to protect the symbol, the symbol ultimately comes to stand for nothing.
New York Times Co. v. Sullivan
In addition to its potential to harm national interests, speech can also harm individuals. For instance, should the law limit the speech of a newspaper that hurts somebody by publishing content that might turn out to be untrue? This was the question at issue in New York Times Co. v. Sullivan, decided in 1964. It involved an advertisement in the New York Times that included statements about actions that Alabama police took against civil rights demonstrators. Some of the statements turned out to be false, and L. B. Sullivan, who supervised the police, sued the Times for libel. Sullivan won the suit in an Alabama court, but the Supreme Court reversed the decision.
The case produced what has come to be known as the Sullivan principles. For speech to be considered libel, it has to damage someone's reputation, it has to be false, and it has to involve malice. To win a libel judgment against a news organization, all three criteria need to be met. For instance, proving that one's reputation was harmed because of a newspaper story is relatively easy. Proving that the story was untrue is not that difficult either. The third test, however, is often difficult, if not impossible, to meet. Establishing malice requires one to prove that the writer of a news story deliberately set out to cause harm to another.
All the free speech cases involved the recognition that speech has consequences. State regulation is a question
of degree and whether the speech serves a real purpose. In New York Times v. Sullivan, the Court stated that the ultimate purpose of a free press is to hold public officials accountable. That becomes nearly impossible to do if reporters have to constantly fear that they will be sued for libel.
Freedom of Religion
The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Framers believed that religion was a matter of individual conscience and therefore an extension of human agency. Liberty requires that government respect
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Since the 1962 case of Engel v. Vitale, school prayer has been considered a violation of the separation of church and state. However, on‐ campus prayer that is organized by students or an outside group is permissible as long as teachers and other school officials do not participate.
human agency. Later, Thomas Jefferson would enunciate the concept of a strict separation of church and state. The First Amendment was meant as much to protect states that had established churches as to prevent those that did not.
The issue of freedom of religion has been an extremely explosive one. The Establishment Clause of the First Amendment declares that Congress shall make no official state religion. The Free Exercise Clause of the First Amendment guarantees that individuals are free to practice their religion without government interference. But what if one wants to have a moment of prayer in school? Does that violate the Establishment Clause because the school, if it is public, is an extension of the state? If it does not violate the Establishment Clause and the school does not allow prayer, is the school violating the right to free exercise? Partly because of these knotty questions, the issue of school prayer has proven to be very contentious. Civil libertarians often invoke the separation of church and state. Proponents of school prayer often accuse civil libertarians of being anti‐religion.
Engel v. Vitale
The 1962 case Engel v. Vitale established that school prayer, even non‐denominational school prayer, is a violation of the First Amendment. The case involved a non‐denominational prayer written by the New York Board of Regents to be recited in the public schools. Steven Engel and other parents brought suit against William J. Vitale and other members of the Board of Education of the Union Free School District. The courts in New York upheld the "Regents' Prayer" so long as students were not forced to participate over either their objections or their parents.'
The Supreme Court disagreed. Writing for the Court, Justice Hugo Black made it clear that the fact that the prayer was nondenominational was really beside the point:
. . . Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause. . . . When the power, prestige and financial support of government is placed behind particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to
destroy government and degrade religion.
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Black went onto assert that religion is "too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate." Even a nondenominational prayer becomes corrupted when joined to the state. And even if students are free to exempt themselves from participation, to do so makes them vulnerable to social ostracism, which in itself is discriminatory. Elsewhere in the opinion, Black was quick to point out that these problems had historically been the reality when religion and government were joined together.
Lemon v. Kurtzman
Prayer in school was one thing, but could the state support religion by providing subsidies to church‐ related schools? Various states passed legislation providing financial assistance to church‐related elementary and secondary schools that went beyond providing transportation or textbooks.
The 1971 case of Lemon v. Kurtzman involved legislation enacted in both Pennsylvania and Rhode Island. The statutes allowed the states to reimburse parochial schools for the provision of secular teaching services. Reimbursements were to be limited to those courses that would be found in a public school curriculum. The statute would only reimburse for courses in the subjects of math, modern foreign languages, physical science, and physical education. It expressly prohibited reimbursement for "any subject matter expressing religious teaching, or morals or forms of worship of any sect." Alton Lemon was a citizen, a taxpayer, and the parent of a child attending public school in Pennsylvania. He brought suit against David Kurtzman, who was superintendent of public instruction in Pennsylvania, for violating the First Amendment's Establishment and Free Exercise Clauses. A three‐judge federal court held that the law violated neither of them.
The Supreme Court, however, differed with the appellate court and came up with what has been referred to as the Lemon test. Writing for the Court, Chief Justice Warren Burger stated that a statute would have to meet three criteria. First, it must have a secular legislative purpose. Second, its principal effect must be that it neither advances nor inhibits religion. And third, it must not foster "an excessive government entanglement with religion." The Court then concluded that "the cumulative impact of the entire relationship arising under the statutes to each State involves excessive entanglement between government and religion." Thus, subsidies of this nature, which had the effect of lowering the cost of sending children to parochial schools, violated the separation between church and state.
Zelman v. Simmons‐Harris
Many thought that the Lemon tests were too stringent and discriminated against those who wanted to send their children to religious schools. As a matter of civil liberties, parents may send their children to whatever school they choose, but as Lemon made clear the taxpayers could not subsidize it.
But what about a public voucher program that allows parents to choose which school they want to send their children to? In recent years, parents upset with the quality of public education have sought reform. One idea, based on free market principles, would be for all parents to receive vouchers from
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the local school district. They could use them to send their children to the local public school or they could apply them to a private school of their choice. If, for example, a father gets a $5,000 voucher for his child, he can use it in the public school and pay no more or apply it toward private school whose tuition is $10,000. This amounts to a subsidy for private education. In many cases, parents are going to send their children to private school anyway and often complain about paying property taxes to public schools they do not use. With vouchers, some feel they are at least getting their money's worth from their property taxes. Others maintain that vouchers make the education market competitive, forcing public schools to offer a higher‐quality education. Critics, however, claim that they often subsidize religious education because many of the private schools that parents opt for are parochial. Others claim that they simply undermine public education.
Ohio created such a voucher program in the late 1990s. The state offered a $2,250 tuition grant for each student from a low‐income family enrolled in a private school within, for example, the Cleveland district. The private school could be either religious or non‐religious. Doris Simmons‐Harris and other state taxpayers sued Susan Tave Zelman, the superintendent of public instruction of Ohio, on the grounds that the voucher program violated the Establishment Clause.
The Supreme Court decided Zelman v. Simmons‐Harris in 2002, with Chief Justice Rehnquist delivering the opinion. The Court took the view that the program being challenged offered real choice and as such was constitutional. Rehnquist said that the program actually created a financial disincentive to religious schools, because private schools received only half of what community schools did. In other words, unlike the Lemon case, this voucher did not create an excessive entanglement between government and religion because its only intent was to offer parents the choice of private school alternative to public education.
Right to Privacy
Americans assume that as part of their basic liberties they may do as they please in private. However, the right to privacy is not specifically spelled out in the Constitution. Rather, it is inferred on the basis of both the Fourth and Ninth Amendments. The Fourth safeguards against unreasonable searches and seizures by directing that individuals may not have their private houses, personal effects, papers, or other property searched or seized without just cause, as expressed in a warrant. To the extent that there is a guarantee against such intrusion, there is an assumption of privacy. The Ninth Amendment reserves to the people those rights that had not been enumerated in the Constitution.
Just because the Framers did not define privacy or carefully spell out what it means, does not imply that they would have wanted such a right to be unprotected. Still, the issue of privacy has been a contentious one, especially with regard to abortion.
Roe v. Wade
Roe v. Wade is the famous 1973 case where the Supreme Court found that a woman's right to
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terminate a pregnancy was constitutional under her right to privacy. The Court's ruling invalidated a Texas state statute that criminalized abortion. Under that statute, both a woman seeking an abortion and the doctor who performed it could be prosecuted and sent to jail.
The problem with this case was that the justices could not point to a specific provision in the Constitution that actually granted a right to privacy, so they had to effectively manufacture the right. To do this, the Court staked its claims on earlier precedents. The first precedent was the 1965 case of Griswold v. Connecticut (discussed in Chapter 7), where the Supreme Court held that married couples had a right in privacy to practice birth control. Recall that in this case the Court asserted that the Constitution contained a penumbra—a spirit—of privacy. Implicit in Griswold was the idea that if contraception was an issue of privacy within a marriage, then the decision not to get pregnant was actually a joint decision between husband and wife. The Court went further in Eisenstadt v. Baird in 1972 by saying the right to practice contraception extended to unmarried couples; it also suggested that the right not to get pregnant was not a shared decision, but was the woman's alone to make.
In Roe v. Wade, Justice Harry Blackmun observed that the Constitution does not explicitly mention any right to privacy, but the Court has nonetheless recognized that such a right exists: "The right to privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we find it is . . . in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The right to privacy could be found in the spirit of the Ninth Amendment, and even if it was not specifically mentioned, it was nonetheless there.
The Court held that women could terminate pregnancies because the fetus was not considered a person. The Court left open the possibility for the state to regulate abortions if there were a compelling interest to do so. During the first trimester, a woman was presumed to have unlimited rights to terminate. But as the fetus attained viability, that is, the likelihood of survival outside the womb, there might be a compelling interest to regulate and limit her choice to terminate. A state might place limitations on abortions during the second trimester and even ban them during the third unless the mother's life was at stake. One problem with this standard was that technological advances would allow fetal viability to be achieved earlier, thereby making stricter regulations more likely.
Roe v. Wade was important for several reasons. First of all, it touched on the issue of religious freedom, even though it was not specifically about that issue. Those protesting the decision claimed it was contrary to many religious beliefs that held abortion to be murder of the unborn. The Court basically said that religious beliefs could not be imposed on an individual. Second, it touched on the issue of federalism. Prior to Roe v. Wade, abortion was an issue for states to decide. In making its ruling, the Court in effect said that states could not be trusted to protect individuals' basic civil liberties. Rather, there had to be a uniform standard.
Finally, the case touched off one of the biggest cultural
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The Supreme Court's 1973 decision in Roe v. Wade remains one of the most controversial— and adversarial—decisions made by the Court.
In the 1992 case Planned Parenthood v. Casey, the court held that the spousal notification requirement created an "undue burden," which effectively erected obstacles to a woman exercising her freedom of choice.
wars the United States has ever seen, one that still grips us today. Not only does it pose a question about when life begins, but, for socially liberal individuals, it raises issues about the rights of women to control their bodies. It cuts to the heart of what it means to talk about human agency, particularly within the context of the Declaration's promise of " life, liberty, and the pursuit of happiness." For social conservatives, it appeared to place the interests of women above their unborn children and represented an assault on the traditional institutions of marriage and family and on the role of women in society.
State Efforts to Roll Back Roe
The trimester rule in Roe left an opening for states to regulate abortion, and many states began to use it. Specifically, those states took the view that if abortion was a right in privacy, then it should not involve the public in any way. During the 1970s, Congress passed the Hyde Amendment, which prohibited public funds from being used to pay for abortions. The Supreme Court upheld its constitutionality in Harris v. McRae in 1980, stating that it did not interfere with a woman's right to choose but only established that the public was under no obligation to pay for her private choices.
In the 1989 case of Webster v. Reproductive Health Services, the Supreme Court, ruling on a Missouri statute that would make it more difficult for women to exercise their right to abortion, appeared to say that so long as a woman's basic right to choose is respected, a state may erect obstacles to acting on that right. In other words, the right to choose to have an abortion is a negative right, meaning the state may not prohibit a woman from having one. It is not a positive right, and the state is under no obligation to make it easy for her to choose an abortion. The sum total of the ruling was that one's basic civil liberties are to be respected and protected, but they can be limited if there is a compelling state interest to do so.
Despite attempts by states to restrict a woman's right to choose, the Supreme Court continued to assert the core principle contained in Roe. In 1992, the Court decided Planned Parenthood v. Casey. At issue were provisions in Pennsylvania's Abortion Control Act that required a woman to give her
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informed consent and receive information 24 hours prior to an abortion, minors to receive parental consent, and women to notify their husbands. It also imposed certain reporting requirements on facilities performing abortions. The Court specifically held that the spousal notification requirement created an "undue burden." Speaking for the Court, Justice Sandra Day O'Connor stated: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The Court was in short reaffirming a woman's fundamental right to choose.
Rights of the Accused
Americans take it for granted that if and when they are accused of crimes, certain due process rights will be protected. First, they will know what they are charged with and they will be informed of their rights. Second, their homes will not be illegally searched. And third, they will receive state‐provided legal representation if they cannot afford it themselves. All three of these are essential ingredients for a fair trial. The premise is simple: If proper procedure is followed, then the outcome will be correct and just. If the state could search one's home without a warrant, what safeguard would there be that evidence was not planted by police? If in prosecuting a case the state can have people arguing in court who are knowledgeable about the law, then as a matter of fairness the accused should also have somebody knowledgeable about the law representing him or her. And if one could be questioned without an attorney present, we could not be sure that any resulting confession was not coerced.
Unlawful Searches and Seizures
The Fourth Amendment to the Constitution says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." It then says that warrants to search a home, one's papers or to even arrest somebody will not be issued unless there is probable cause, but the warrant has to clearly state where the search will take place, and who or what specifically may be seized. This means that if someone is hiding a gun that is believed to have been used in a murder, it cannot be seized unless there is a warrant to search that person's house. The suspicion that this person might have committed the crime would serve as probable cause to obtain the warrant. As part of due process, the police have to go to a judge and explain why they need a warrant. This requirement creates a safeguard against the arbitrary exercise of authority. If it were not required, nothing would prevent the police from knocking on doors conducting fishing expeditions for anything illegal.
Does this Fourth Amendment protection also prevent evidence that was illegally obtained from being used against a defendant? This was the question addressed by the Supreme Court in Mapp v. Ohio, decided in 1961. Dorothy Mapp was convicted of possessing obscene materials, but the police obtained the evidence illegally. Cleveland police actually showed up at her home in search of a bombing suspect. They forced their way in without a search warrant and during the course of their search of the entire house, including dresser drawers, suitcases, closets, and personal papers, they found obscene materials.
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The Ohio Supreme Court acknowledged that the evidence was illegally obtained but nevertheless upheld the conviction. The Supreme Court overturned that decision.
This case created the famous exclusionary rule, which stipulates that evidence obtained illegally cannot be used against the accused even if it would prove them guilty. Earlier precedents had already made illegally obtained, evidence in federal trials exclusionary. In the Mapp ruling, the Court made it clear that the Fourth Amendment's right to privacy is enforceable against the states through the Fourteenth Amendment, and as a result there is the same right to exclusion:
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourteenth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit the right to remain an empty promise.
Critics, of course, claim that this effectively allows guilty people to go free. But what the Court really said was that unless proper procedures are followed the outcome in the end cannot be considered fair.
The Right to Counsel
The Sixth Amendment establishes that, at least in federal trials, one has a right to have legal counsel. But the right to have an attorney present if the accused pays for it him‐ or herself and having an attorney provided by the state are two different things. As late as the 1940s, the Supreme Court held that the right to have legal counsel provided did not apply to the states.
In 1942, Betts v. Brady denied legal counsel to those who were accused of a crime but too poor to pay for their own attorney. The case involved a man named Betts who was indicted for robbery. A state court in Maryland denied his request for counsel. Forced to represent himself, he was convicted. He filed petitions for Habeas Corpus, claiming that he was denied his legal rights to counsel, in both the Washington County Court where he was convicted and then again in the Maryland Court of Appeals. Both courts rejected the appeals and the case made it to the Supreme Court.
The Court upheld the conviction and denied that the right to counsel in the Sixth Amendment obligated states to provide poor people with attorneys. Four years earlier, in the case of Johnson v. Zerbst, the Court held that poor defendants had to be guaranteed counsel in federal trials, and in Powell v. Alabama in 1932 it held that states did have to provide attorneys to poor defendants in capital cases, where the penalty of conviction would be the death sentence. Powell v. Alabama involved the famous "Scottsboro case" where Ozzie Powell and several black youths were charged with raping two white girls in Alabama. They were found guilty and sentenced to death. The issues before the Supreme Court, which would also feed into the larger Civil Rights Movement, were the absence of fair, impartial, and deliberate trial; the denial of counsel at trial; and the exclusion of blacks from the jury. Speaking for the Court majority, Justice Sutherland stated that even an intelligent person would be at a disadvantage
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Clarence Gideon's 1961 appeal to the U.S. Supreme Court led the court to rule that persons charged in all states must be represented by counsel.
without counsel:
Left without the aid of counsel he may be put on trial without proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.
In Betts, however, the Supreme Court said that the right to counsel did not extend to all cases, because it did not follow that just because one was poor one was more likely to be convicted. The issue was not poverty; it was ignorance of the law that put one at a disadvantage at trial. In his dissent, Justice Hugo Black made it clear that the denial of counsel to poor people did indeed increase the likelihood of conviction, which in his view represented a violation of the Equal Protection Clause.
The Betts case was to be overturned in the 1963 case of Gideon v. Wainwright. Clarence Earl Gideon was convicted in Florida for petty theft and sentenced to five years in the Florida state prison. He was forced to defend himself because the Florida court maintained that the Court could only appoint counsel in capital cases. Gideon read some law books in the prison library and handwrote a note petitioning the Supreme Court to overturn his conviction. In its ruling on Gideon, the Supreme Court maintained that one could not be guaranteed a fair trial without the assistance of legal counsel. A defendant who is ignorant of the law and too poor to pay for an attorney is at a severe disadvantage and as result does not obtain a fair trial. Justice Black implied that the effect was to not only violate equal protection, but to strip the poor person of his basic rights to due process. While it is true that the poor person representing himself would still face his accuser, he would be disadvantaged because he would not know how or have the resources to adequately respond.
The Accused Must Know His or Her Rights
We are all familiar with the famous line on any number of police shows, such as Law & Order, that when arrested, individuals have the right to remain silent, the right to an attorney, and if they cannot afford one, an attorney will be appointed for them. These are the Miranda Rights, and they come from the famous 1966 case of Miranda v. Arizona. Ernesto Miranda confessed to a crime during police interrogation without requesting the assistance of counsel. Speaking for the Court, Chief Justice Earl Warren wrote:
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The plaintiff's attorney in Hamdi v. Rumsfeld argues his case before the Supreme Court. The court ruled that as a citizen, Hamdi had a right to legal counsel and a fair trial.
It is obvious that . . . an interrogation environment is created for no purpose other than to subjugate the individual to the will of the examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles—that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of free choice.
In other words, without minimal safeguards, there is no way to know that the confession was not coerced. Again, unless proper procedure is followed, the outcome cannot be said to be fair and just.
Cases like Miranda and Mapp v. Ohio have long been viewed by staunch law and order conservatives as examples of judicial activism whereby criminal defendants were given rights at the expense of the public interest. The issue has been whether somebody who is known to have committed a crime should be released on a technicality, e.g., the police were sloppy in executing a search warrant or they failed to read this person his rights.
In the 2000 case of Dickerson v. United States, the Supreme Court addressed whether the initial Miranda decision was constitutional or whether it could be superseded by an act of Congress. Charles Dickerson was charged with conspiracy to commit bank robbery. A district court granted his motion to suppress a statement that he made on the grounds that it was obtained in violation of Miranda. The Fourth Circuit Court reversed the district court and held that while his Miranda rights were violated, Miranda itself was not a constitutional holding and that a congressional statute to modify it would have to be the final say on the question of whether that statement would be admissible.
Speaking for the Supreme Court, Chief Justice Rehnquist observed that Miranda warnings were so much part of standard police procedure that they were part of America's national culture. He then stated that "Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves. The judgment of the Court of Appeals is therefore Reversed." The Court, in other words, reaffirmed its commitment to this basic protection.
Since September 11, 2001, the question confronting the nation is whether the rights of the accused extend to so‐called "enemy combatants." Recall from Chapter 5 the case of Hamdi v. Rumsfeld, in which the Supreme Court addressed the question of whether due process required enemy combatants to have the same rights to counsel. The petition filed on behalf of Yaser Esam Hamdi by his father argued that
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denial of access to an impartial tribunal and assistance of counsel was a violation of his Fifth and Fourteenth Amendment rights. Speaking for the Supreme Court, Justice O'Connor held that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker." The Court also asserted that he "unquestionably" had a right to counsel. Although proceedings could be tailored to account for the "exigencies of the circumstances," the Court claimed that, "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."
Summary of Civil Liberties
What the various civil liberties cases have in common is that individual liberties are to be respected, but they are by no means absolute. In matters of privacy, as well as matters of religion and speech, there is to be a presumption in favor of individuals' rights unless there is a compelling societal interest to restrict those rights. In other words, government would need to demonstrate that regulation is needed to prevent incitement and irreparable harm to society.
However, when it comes to the rights of the accused, the bar would appear to be even higher. Here, the Court would seem to be suggesting that because the state can deprive one of his or her life and liberty, it has to be absolutely clear that all proper procedures have been followed so that the outcome is just. This means that one cannot be compelled to make confessions, and it means that one cannot be denied due process or legal counsel, even as the nation is fighting a war on terrorism. In short, basic civil liberties must be protected to ensure not only that we as Americans enjoy our freedom, but that government remains accountable to the public.
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The right to vote was not guaranteed to all individuals until well into the 20th century. Women, for example, did not win the right until the Nineteenth Amendment was ratified in 1920.
President Lyndon B. Johnson gives Martin Luther King, Jr., the pen with which he signed the Voting Rights Act of 1965. The act was passed to achieve legal equality through laws prohibiting discrimination.
8.3 The Quest for Civil Rights As already mentioned, civil rights differs from civil liberties in that civil rights speaks to the desire by groups to be treated the same as other groups. The quest for civil rights speaks to the fact that individuals have not always been treated equally. The main issues in civil rights have been discrimination based on race, inequality of education, and the erection of obstacle to voting. The effects of all this have been not only great inequality politically, but economically too.
The Right to Vote
Historically, the right to vote has not been considered a constitutional right. It was always left to the states to decide who was eligible to vote. If a state wanted to maintain a property qualification, it was free to do so. And if a state wanted to create requirements that voters would have to meet prior to voting, it was free to do that as well, as long as those requirements applied to all potential voters equally.
Initially, states limited voting rights to individuals who were white, male, and owned property. In the 1820s, the states extended the right to vote to all white males, regardless of whether they owned property. Many western states allowed women to vote in the 19th century, but women did not get the right nationally until the Nineteenth Amendment. Ratified in 1920, the Nineteenth Amendment guaranteed that the right to vote could not be abridged on the basis of sex. Then in 1971, the Constitution was amended again with the Twenty‐Sixth Amendment, which extended the right to vote to 18‐year‐olds.
Despite these constitutional protections, for many Americans the fight for voting rights continued. In particular, while the Fifteenth Amendment prohibited states from denying the vote on the basis of race, many Southern states still found ways to deny it to them in practice. In the Jim Crow South, where barriers were deliberately constructed to prevent African Americans from voting, a "grandfather clause" meant that one had to pass a literacy test if one's grandfather could not vote, which if he had been a slave, he could not. Those who could not read were effectively disfranchised from the system. Recently freed slaves who did not get an education were thus barred. Other barriers to voting included poll taxes, which kept poor people, both black and white, away from the polls. In other areas, black voters would be
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The arrest of Rosa Parks for refusing to move to the back of the bus sparked the Montgomery Boycott and the Civil Rights Movement.
discouraged by racial violence, especially lynching.
The Civil Rights Movement
The Civil Rights Movement, which culminated with the Civil Rights Act of 1964 and the Voting Rights Act of 1965, was a grassroots protest that sought to end racial discrimination and achieve equal voting rights. Among the practices that were most protested during this era were the inability to vote, the forced separation of blacks in schools and on public transportation, and the "separate but equal" provision of services like hotels, restaurants, and drinking fountains.
The Civil Rights Movement was sparked in 1955 when Rosa Parks, a black seamstress, boarded a city bus and sat with three other blacks in the fifth row, which was the first row that blacks could occupy. After a few stops, the four front rows were filled with whites, and one white man was left standing. When the bus driver asked the four blacks to move, three complied, but
Rosa Parks refused and was arrested. Her arrest sparked a boycott of the buses by the black community, which resulted in several arrests, including Parks, for violating the 1921 anti‐boycotting law.
Following the bus boycott, members of the Civil Rights Movement, led by Martin Luther King, Jr., began marching for basic rights—to end racial discrimination, including the discrimination that prevented them from voting. The 1964 Civil Rights Act was a landmark piece of legislation that outlawed major forms of discrimination against blacks and women, including racial segregation. Although enforcement was weak, it legally ended unequal application of voter registration requirements and racial segregation in schools, at the workplace and by facilities that served the general public, otherwise known as "public accommodations." (See Table 8.1.)
Table 8.1 The Civil Rights Act of 1964
Title Description
Title I Banned unequal application of voter registration requirements
Title II Outlawed discrimination in restaurants, hotels, motels, theaters, and other accommodations engaged in interstate commerce
Title III Prohibited state and local governments from denying access to public facilities on the basis of race, religion, gender, and ethnicity
Title IV Encouraged desegregation of public schools and allowed the attorney general to file suit to enforce desegregation
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Title V Expanded the U.S. Civil Rights Commission
Title VI Prevented distribution of federal funds to agencies that did not comply with the Civil Rights Act
Title VII Prohibited employers from discriminating based on race, color, sex, or national origin
Still, states sought to limit voting, which itself was a major civil rights issue. Section 2 of the Fifteenth Amendment states: "The Congress shall have power to enforce this article by appropriate legislation." This provision is very important because it was through the 1965 Voting Rights Act that Congress began to enforce the Fifteenth Amendment. The Voting Rights Act was specifically intended to outlaw the practice of requiring voters to pass literacy tests to register to vote. The Act established extensive federal oversight of elections by providing that states with a history of discriminatory voting practices could not make any changes to their election laws without first obtaining the approval of the Justice Department. Because African Americans could vote in New York but were barred from voting in Mississippi and Alabama, they were being denied their basic rights of citizenship in violation of the Equal Protection Clause. While these restrictions would typically be challenged in court, Southern state officials chose to ignore them. States could technically ignore the Voting Rights Act too, but as discussed in Chapter 3, the federal government could enforce it through crossover sanctions.
The 1960s have often been referred to as the beginning of the nation's cultural wars. On one level, the Civil Rights Movement was about achieving equality for groups that had historically been discriminated against. But on another level, it came to signify a cultural revolution whereby individuals felt empowered to challenge traditional norms and authority. It was the beginning of the "sexual" revolution, whereby individuals asserted their individuality and felt much less constrained by traditional norms of marriage and family. For social conservatives, these trends were viewed as an assault on the traditional institution of family and the breaking down of law and order.
Historybook: Fictional Moments in Social Media
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The infamous segregated water fountains of the 1950s were indicative of the era's "separate but equal" doctrine.
8.4 The Meaning of Equal Rights and Equal Treatment Most Americans take it as a given that equal treatment is a basic civil right. If, for example, John is given greater privileges by the state than Susan, Susan can rightfully claim that she is not receiving equal treatment. If Susan is not being treated equally because of her gender, she can claim discrimination. Such cases of discrimination may appear to be simple enough, but in practice they often become quite complicated. Suppose, for example, that both John and Susan apply for a job and only one can be hired. By definition, the one who is not hired has been discriminated against. The employer made a choice and stated a preference. Can we still say that both John and Susan received equal treatment?
The concept of equal protection has meant different things at different times. From about 1890 until the 1950s, the reigning doctrine when it came to racial discrimination was that of separate but equal. This meant, for instance, that a school system did not have to educate white and black students in the same classrooms. Rather, there could be separate schools for black and white students as long as the schools were equal. It was these types of segregated facilities, including simple things such as separate water fountains for black and whites in the South, that would come to symbolize the Civil Rights era of the 1950s and 1960s. Today we take for granted that to be afforded equal treatment means that facilities will be fully integrated.
Plessy v. Ferguson
For most of the period between the Civil War and the cultural revolution that began in the 1960s, blacks and whites were held to the separate but equal doctrine in the United States. The doctrine was upheld by the Supreme Court beginning in the 1896 case of Plessy v. Ferguson, which revolved around a Louisiana law that required separate railway cars for whites and blacks. Homer A. Plessy, who was one‐eighth black, was arrested for attempting to sit in a railway car reserved for whites. Convicted in a Louisiana court, he appealed the order of the judge, John Ferguson.
The Supreme Court did not consider Louisiana's law to be in violation of the Thirteenth Amendment, which abolished slavery, nor the Fourteenth Amendment, which established citizenship and equal protection. At issue for the Court was whether it was a reasonable regulation. As the Court stated:
In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the
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George E. C. Hayes (left), future Supreme Court Justice Thurgood Marshall (center), and James M. Nabrit join hands outside the Supreme Court after the court ruled in Brown v. Board of Education that school segregation was unconstitutional.
promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable. . . .
The Court also made it clear that if the two races were to meet on terms of social equality, it would have to occur naturally; the Constitution of the United States could not order it. In other words, individuals could not be forced to abandon their prejudices because of a clause in the Fourteenth Amendment, nor could that clause force people to accept others as their social equals.
Brown v. Board of Education
The Supreme Court reversed Plessy v. Ferguson in Brown v. Board of Education, the famous 1954 school desegregation case where the Court concluded that separate was not equal. Linda Brown was prohibited from attending a white public school in Topeka, Kansas. She and six others sued on the grounds that separate schools violated their rights to equal protection. Their case was helped by events in the larger world. Coming on the heels of World War II, where the consequences of hatred and bigotry in Nazi Germany were clear, coupled with the fact that black soldiers fought valiantly for the country, the Court was inclined to reconsider its earlier precedent.
Another factor influencing the Court's willingness to reconsider precedent, which perhaps was a factor in the larger Civil Rights Movement, was America's image during the Cold War. The Eisenhower Justice Department filed a brief in the Brown case in part because the inequality among the races was a detriment in the eyes of the Soviet Union and the Third World.
Writing for the Court majority, Chief Justice Earl Warren made it clear that education was the very foundation of citizenship:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
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Based on testimony of psychologists and various social scientists, the Court concluded that segregation had a detrimental effect on people and that in the field of public education the doctrine of separate but equal had no place. Simply put, if facilities were separate they were not equal.
Brown v. Board of Education proved to be extremely controversial. Critics accused the Court of judicial activism. They argued that segregated school systems reflected the democratic will of the majority in the communities where they were located. Who was the Supreme Court to defy democracy? There were even calls to strip the Supreme Court of its authority. Even President Eisenhower, who had appointed Chief Justice Warren, wondered if he had made a mistake.
Regents of the University of California v. Bakke
Until the mid‐1960s, the Civil Rights movement had been preoccupied with obtaining the right to vote and removing barriers to both access and participation. The Johnson Administration took federal policy a step further with the introduction of affirmative action in 1965. Based on the premise that both women and minorities had been left behind because of past discrimination, the practice of affirmative action attempted to level the playing field. Because inequality is the result of historic discrimination, steps must be taken to ensure that the group is promoted in reasonable proportion to its presence in the population.
Beginning as guidelines for hiring in federal agencies, the idea was to give those who were historically discriminated against a head start. As an example if Mr. Jones, who is black, and Mr. Smith, who is white, apply for the same job and both have the same qualifications and experience, then preference should be given to Mr. Jones so that he can be given an opportunity. Under the Nixon administration, the federal government began requiring all private companies that held contracts with the federal government to adopt federal affirmative action guidelines. If universities received federal grant money for research or federal scholarship money for students, they too had to adopt these guidelines.
The University of California, like a lot of other universities, developed a race‐based admissions quota, and some began to question whether the effects of affirmative action constituted reverse discrimination. Let us suppose that the entering class of a medical school has 100 seats available and 15 are set aside for minorities. If somebody refused admission says that he has better grades and higher test scores than many who were accepted, particularly among the 15 seats set aside, is that person in effect being discriminated against? This was the claim made by Allan Bakke, who applied to the University of California medical school at Davis. Bakke was older than most medical students, had been an engineer and was twice rejected by the university. He alleged that the use of a special admissions process for "disadvantaged" applicants had the effect of denying him equal protection under the law.
The Supreme Court agreed, in part. Writing for the Court, Justice Louis Powell said that promoting representation of minorities in universities and the professions in proportion to their presence in the general population was a reasonable public policy objective. And for that matter, the Court was not
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prepared to say that affirmative action as a policy was necessarily unconstitutional. However, Powell stated that "it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by the Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class." In other words, affirmative action intended to promote greater equality was acceptable public policy, but the use of quotas was not.
The state had failed to demonstrate that this type of classification system was necessary to promote a state interest, and because the University of California was a public institution it was effectively an arm of the state. In the 2003 case of Gratz v. Bollinger, involving a point system in the University of Michigan's undergraduate affirmative action admissions, the Supreme Court ruled that a point system that automatically awarded points to underrepresented ethnic groups was too mechanistic in its use of race as a factor in admissions. As such, it was unconstitutional, but again the Court was not ruling the overall concept of affirmative action to be unconstitutional. On the contrary, in the 2003 case of Grutter v. Bollinger involving the University of Michigan's law school, and also announced on the same day as Gratz, the Supreme Court ruled that the Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
Ricci v. DeStefano
The 2009 case of Ricci v. DeStefano involved a lawsuit brought by 19 firefighters in New Haven, Connecticut, claiming that they were discriminated against in promotions. Seventeen firefighters were white and two were Hispanic, and they all passed their tests for promotion to management. The City of New Haven, however, invalidated the results because none of the black firefighters taking the test scored high enough to be promoted. New Haven claimed that it was fearful of a lawsuit over the test's adverse impact on a protected minority. New Haven actually argued that had it not taken this action it would have been in violation of Title VII of the Civil Rights Act. The 19 White and Hispanic firefighters claimed that this was a form of racial discrimination.
In a 5–4 decision, the Supreme Court ruled that New Haven's action violated Title VII of the 1964 Civil Rights Act. Speaking for the Court, Justice Anthony Kennedy said that an employer had to "demonstrate a strong basis in evidence, that, had it not taken the action, it would have been liable under the disparate‐impact statute," and that New Haven failed to do so.
Evolving Civil Rights
As we have seen through our discussion of the various cases, civil rights in America evolved from an initial quest to remove barriers to access and participation to policies aimed at achieving equality. The educational cases dealing with segregation in schools were about obtaining equality in educational opportunity because unequal education would result in group disadvantage, thereby exacerbating
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economic inequality, which in turn would affect various groups' ability to participate in the political process on an equal basis. But as these barriers were removed, national policy turned to the attainment of equality through programs like affirmative action, which were designed to advance groups that were historically discriminated against so that they could be on an even plane with others. As much as the Supreme Court was willing to allow these programs in principle on the grounds that they further a social interest, it was not willing to allow them to be designed in such a way that the effect would be to discriminate against others.
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Summary and Application One of the distinctive features about American life is that we take our basic civil liberties very seriously. At a minimum, we take for granted that we have the right to vote, to express ourselves freely, to practice our faith unhindered by government interference, and to do as we please in private. Arguably, that was why the anti‐federalists insisted on a separate Bill of Rights. It was not until 1868, following the Civil War, that the Fourteenth Amendment was passed as a vehicle for applying the protections in the Bill of Rights to the states, too. The most important clause in the Fourteenth Amendment is the Equal Protection Clause, which, when joined with the definition of citizenship, means that individuals cannot be treated differently. Government, whether it is the federal government or that of the states, must afford citizens equal treatment. To provide less is to effectively engage in discrimination.
Both civil liberties and civil rights in the U.S. have expanded dramatically since the days of the nation's founding. Among the key expansions is the right to vote. Also, because a core American value is equal opportunity, the quest for civil rights in the United States has entailed removing barriers to access. To this end, with regard to civil rights, education—which greatly affects one's access and ability to succeed in life—must be provided on an equal basis. The earlier doctrine of separate but equal no longer has a place in American society.
Finally, over the years the Supreme Court has defined the concept of privacy, especially in defining a woman's right to choose to have an abortion. Still, as much as American civil liberties have expanded, they have never been absolute. There has always been a basis for interfering with them if the state had a compelling interest to do so. The Supreme Court has often echoed John Stuart Mill's harm principle— that although there is to be a presumption in favor of individual liberty, the state may restrict that liberty to prevent harm to one's self or others. As we have seen, government can regulate free speech when it creates a "clear and present danger," but it must be done according to very exacting standards. And the state can restrict a woman's right to choose when there is a compelling state interest, which is usually defined at the point of fetal viability. The point is that rights and liberties always need to be balanced against the larger public interest.
Key Ideas to Remember
Both the concepts of civil liberties and civil rights have evolved over American history. Civil liberties often refer to the rights of individuals to express themselves, to practice their faith freely, and, when accused of crimes, to have access to basic protections, such as due process and counsel. The right to privacy, while not explicitly stated in the Constitution, is also considered a basic liberty. Civil rights often refer to the rights of groups to be treated on an equal basis with other groups, meaning that barriers to equal access, education, and participation in political affairs resulting in discrimination must be removed.
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The overall Civil Rights Movement was a quest for equality and represented the efforts of disadvantaged minorities to assert themselves. Free speech is not considered an absolute right, but the Court's position has evolved to one whereby unless one's speech is so dangerous as to create harm to society, there must be a presumption in favor of individuals' preferred freedoms. On matters of privacy, especially with regard to rights to have an abortion, the Supreme Court has upheld the core principle of a woman's right to choose despite its recognition of states' rights to pass laws restricting abortions. Initially, the Civil Rights Movement was about removing barriers to equal education and voting, but over time it manifested itself in efforts to achieve group results through policies of affirmative action. Despite the Court's position that racial quotas and point systems do violate the Equal Protection Clause of the Fourteenth Amendment, the Court has nonetheless affirmed the principle that government may have a compelling interest in pursuing affirmative action.
Questions to Consider
What is the obligation of government to protect its citizens? What does it mean to provide equal protection under the law? How does the Fourteenth Amendment work to nationalize the Bill of Rights? Why is it important for poor people to have publicly provided attorneys to represent them? How does protecting the rights of the accused protect us all? Why is free speech critical to civil liberties? What are the limits to free speech? Given the separation of church and state, can a student lead a prayer group in an empty classroom during lunchtime?
Web Links
American Civil Liberties Union: http://www.aclu.org/ (http://www.aclu.org/)
Duke Law Library: U.S. Supreme Court: http://www.law.duke.edu/lb/researchguides/ussup (http://www.law.duke.edu/lb/researchguides/ussup)
Southern Poverty Law Center: http://www.splcenter.org (http://www.splcenter.org)
The Leadership Conference: http://www.civilrights.org/ (http://www.civilrights.org/)
Key Terms
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Key Term Definition
affirmative action A policy to promote the equal representation of women and minorities in various activities in proportion to their presence in the population.
bad tendency test A test for speech that suggests that if the speech sets a bad precedent or is what we shouldn't hear, it may be prohibited.
capital cases Cases in which the penalty of conviction would be the death sentence.
civil liberties Rights that we as individuals enjoy, usually referring to personal freedoms.
civil rights Usually pertain to the rights of groups to enjoy the liberties otherwise enjoyed by individuals free of discrimination.
clear and present danger test
A test to determine if speech is potentially harmful and, as such, can be prohibited.
due process The right of the accused to face one's accuser and know what the charges are against him or her.
exclusionary rule Illegally obtained evidence cannot be used against the accused to convict him.
Equal Protection Clause A requirement in the Fourteenth Amendment that citizens not be treated differently.
Establishment Clause The clause in the First Amendment that prohibits the establishment of a state‐sponsored religion.
Free Exercise Clause The clause in the First Amendment that guarantees individuals the right to practice their religion freely.
Hyde Amendment A law that prohibits the use of public monies, such as Medicaid, to pay for abortions.
libel A false written statement, created with malice, that undermines someone's reputation.
Lemon test The criteria that must be met if governments are to provide services to church‐related schools.
Miranda rights The right to remain silent, to have legal counsel, and to have counsel appointed if one cannot afford it; read upon arrest to all individuals suspected of committing a crime.
A test of free speech whereby the Court presumes in favor of
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preferred freedoms individual liberties and allows even speech that might otherwise be a bad tendency.
Privileges and Immunities Clause
The statement in the Fourteenth Amendment that says that rights and privileges of an individual in one state must be recognized in another.
separate but equal The idea that there could be separate facilities for racial groups as long as they are equal.
Sullivan principles The criteria that the Court uses to determine whether a news story is libel.
Cases Discussed
Abrams v. United States 250 U.S. 616 (1919)
Betts v. Brady 316 U.S. 455 (1942)
Brown v. Board of Education 347 U.S. 483 (1954)
Dickerson v. United States 530 U.S. 428 (2000)
Eisesntadt v. Baird 405 U.S. 438 (1971)
Engel v. Vitale 370 U.S. 421 (1962)
Gideon v. Wainwright 372 U.S. 335 (1963)
Gratz v. Bollinger 539 U.S. 244 (2003)
Griswold v. Connecticut 381 U.S. 479 (1965)
Grutter v. Bollinger 539 U.S. 306 (203)
Hamdi v. Rumsfeld 124 S.Ct. 2633 (2004)
Harris v. McRae 448 U.S. 297 (1980)
Johnson v. Zerbst 304 U.S. 458 (1938)
Lemon v. Kurtzman 403 U.S. 602 (1971)
Mapp v. Ohio 367 U.S. 643 (1961)
Miranda v. Arizona 384 U.S. 436 (1966)
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New York Times v. Sullivan 376 U.S. 254 (1964)
Planned Parenthood v. Casey 505 U.S. 914 (1992)
Plessy v. Ferguson 163 U.S. 537 (1896)
Powell v. Alabama 287 U.S. 45 (1932)
Regents of the University of California v. Bakke 438 U.S. 265 (1978)
Ricci v. DeStefano 129 S.Ct. 2658, 174 L.Ed. 2d (2009)
Roe v. Wade 410 U.S. 113 (1973)
Schenck v. United States 249 U.S. 47 (1919)
Texas v. Johnson 491 U.S. 397 (1989)
Webster v. Reproductive Health (492 U.S. 490 (1989)
Whitney v. California 274 U.S. 357 (1927)
Zelman v. Simmons‐Harris 536 U.S. 639 (2002)
Further Reading
Abraham, H. J. (1988). Freedom and the court: Civil rights and liberties in the United States. (8th ed.). University Press of Kansas.
Barber, S. A. (1984). On what the constitution means. Baltimore & London: The Johns Hopkins University Press.
Dworkin, R. (1985). A matter of principle. Cambridge, MA: Harvard University Press.
Fisher, L. (2011). American constitutional law (9th ed.). Durham, NC: Carolina Academic Press.
Levinson, S. (1988). Constitutional faith. Princeton: Princeton University Press.
Levin‐Waldman, O. M. (1996). Reconceiving liberalism: Dilemmas of contemporary liberal public policy. Pittsburgh: University of Pittsburgh Press.
Lewis, A. (1966). Gideon's trumpet. New York: Vintage Books.
Tribe, L. H. (1985). Constitutional choices. Cambridge, MA: Harvard University Press.
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Tribe, L. H. (1992). Abortion: The clash of absolutes. New York: W.W. Norton & Co.