Civil Liberties Liberties v Rights Civil Rights are

Civil Liberties

Liberties v. Rights Civil Rights are government guarantees of political equality. Civil Liberties protect individuals from governmental interference. Civil Rights tend to apply to groups, whereas Civil Liberties are individual protections.

The Bill of Rights - Early Interpretation Early Supreme Court Seen as weak institution Cases are primarily about: distribution of power among branches of government relationship between state and federal government

Early Interpretation of the Bill of Rights Barron v. Baltimore (1833)

Early Interpretation of the Bill of Rights Barron v. Baltimore (1833) Bill of Rights does not apply to the States “Congress shall make no law…”

Incorporation of the 14 th Amendment Incorporation The process through which the Supreme Court examines individual provisions of the Bill of Rights and applies them against state and local officials

Incorporation of the 14 th Amendment After the Civil War, 14 th Amendment added to the Constitution 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, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Incorporation of the 14 th Amendment Judges must determine what protections, if any, are provided by the phrases: Privileges or immunities of citizens Equal protection of the laws Due process of law

Incorporation of the 14 th Amendment First step towards incorporation: 5 th Amendment “Takings” Clause

Incorporation of the 14 th Amendment Lawyers ask Supreme Court to interpret the Due Process Clause in such a way as to protect individual rights against state and local governments Supreme Court refuses to incorporate a personal right until 1925 decision in Gitlow v. New York (1925)

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

Gitlow v. New York (1925) "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State. “ But the case does uphold the right to free speech Clear and Present Danger was established in Schenck v. U. S. (1919)

1 st Amendment Rights: Freedom of Speech Symbolic Speech When people take an action designed to communicate an idea

1 st Amendment Rights: Freedom of Speech Symbolic Speech can be granted 1 st Amendment protection Tinker Texas v. Des Moines (1969) v. Johnson (1989)

1 st Amendment Rights: Freedom of Speech When can restrictions be put on First Amendment rights? Reasonable restrictions on assemblies: • • • Time Place Manner - Hate speech Fighting words

Obscenity Roth v. United States (1957) Ban ok if…“average person, applying contemporary community standards” would find it “without redeeming social importance”

Obscenity Miller v. California (1973) • Depicts or describes sexual conduct in a patently offensive way • “Lacks literary, artistic, political, or scientific value”

Obscenity Potter Stewart’s Standard "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. "

Obscenity in Music 2 Live Crew American Family Association: “Parental Advisory” not enough 1988 – store owner in Alabama arrested Broward County, FL declares album obscene Obscenity is confirmed by the U. S. District Court

Broward, huh?

Broward County Largely white retirees Store owners arrested for selling the album 3 members arrested after a live performance

U. S. Court of Appeals Dr. Henry Louis Gates Lyrics have roots in African-American “vernacular, games, and literary traditions” Members are acquitted in their trials Appeals Court side with 2 Live Crew

U. S. Court of Appeals Dr. Henry Louis Gates Lyrics have roots in African-American “vernacular, games, and literary traditions” Members are acquitted in their trials Appeals Court side with 2 Live Crew later had a case go the Supreme Court Campbell v. Acuff-Rose Music, Inc Court sides with 2 Live Crew (fair use / parody)

Media Freedom

Prior Restraint a governmental attempt to prevent certain information or viewpoints from being published

1 st Amendment Rights: Freedom of the Press Near v. Minnesota (1931) The Supreme Court rules against the use of prior restraint of publications that criticize the government

1 st Amendment Rights: Freedom of the Press interests versus governmental priorities Reporter’s privilege Shield Laws Reporters may be found in contempt of court if they refuse to cooperate with criminal investigations Judith Miller of the New York Times

Pentagon Papers Reveal numerous government lies about the Vietnam War (under Kennedy & Johnson) Nixon “protects” the right to secrets Invokes Espionage Act of 1917 NYT v. U. S (1971) “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. ”

Civil Liberties and National Security Some examples: The USA PATRIOT Act (2001) Military Commissions Act (2006)

Patriot act Senator Conyers: "We don't really read most of the bills. Do you know what that would entail if we read every bill that we passed? . . . [It would] slow down the legislative process”

Patriot Act Concerns Wiretaps don’t need a warrant Voicemail access granted with a warrant, not a wiretap order Law enforcement can “shop” for judges Access to library records Indefinite detention of accused terrorists

Military Commissions Act (2006) Detainees can have a military trial Cannot use a civilian attorney No habeas corpus* No jury – a 2/3 vote from the Commission Indefinite detention of “unlawful combatants” and “those awaiting determination” Includes “aliens” and US citizens

Area 51

Area 51 1994: Contractors, widows sue the USAF DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” Rejected by U. S. District Court

Area 51 1994: Contractors, widows sue the USAF DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” Rejected by U. S. District Court Clinton exemption for “The Air Force’s Operational Location Near Groom Lake, Nevada” Court drops the case (no evidence)

Area 51 1994: Contractors, widows sue the USAF DOD: releasing evidence, ID’ing witnesses would “expose classified information and threaten national security” Rejected by U. S. District Court Clinton exemption for “The Air Force’s Operational Location Near Groom Lake, Nevada” Court drops the case (no evidence) Appealed, “can reveal military operational capabilities or the nature and scope of classified operations” Case dismissed

Consider this… Should the U. S. government have the authority to assassinate, without trial, people that are considered threats to U. S. national security?

Consider this… Should the U. S. government have the authority to assassinate, without trial, people that are considered threats to U. S. national security? Should the U. S. government have the authority to assassinate, without trial, U. S. citizens that are considered threats to U. S. national security?

Consider this… Should the U. S. government have the authority to assassinate, without trial, people that are considered threats to U. S. national security? Should the U. S. government have the authority to assassinate, without trial, U. S. citizens residing inside of the United States that are considered threats to U. S. national security?

Religion

1 st Amendment Rights: Freedom of Religion Establishment Clause “Congress shall make no law respecting an establishment of religion…. ” Free Exercise Clause “…or prohibiting the free exercise thereof. ”

2 Views of Establishment Clause Separationist Accommodationist Government must avoid Would permit the contacts with religion, government to provide especially those that lead support for religion and to government support associated activities or endorsement of religious activities

Freedom of Religion In the 1960 s the Supreme Court adopts the Separationist Perspective 1) 2) Engel v. Vitale (1962) -School Prayer School District of Abington Township, Pennsylvania v. Schempp (1963) -School Bible readings

1 st Amendment Rights: Freedom of Religion How does the Supreme Court decide cases that involve the Establishment Clause? Lemon test: a standard developed in the 1971 case Lemon v. Kurtzman. The court must ask three questions: 1) Does the law or practice have a secular purpose? 2) Does the primary intent or effect of the law either advance or inhibit religion? 3) Does the law or practice create an excessive entanglement of government and religion?

Freedom of Religion Free Exercise Clause: key cases Minersville School District v. Gobitis (1940) West Virginia v. Barnette (1943) Employment Division of Oregon v. Smith (1990) -right to free exercise of religion does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’”

2 nd Amendment: Right to Bear Arms “A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear Arms shall not be infringed. ” US v. Miller (1939) D. C. v. Heller (2008)

U. S. V. Miller Supreme Court’s ruling Commerce Clause applied Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia A sawed-off barrel made the NFA applicable

D. C. V. Heller Issue pushed by former AG Ashcroft D. C. law banned handguns (unless retired police) Rifles & shotguns had to be registered & have a trigger lock Supreme Court struck down the law

Criminal Rights Exclusionary Rule (4 th Amendment) Under this rule, evidence that is obtained improperly by the police cannot be used to prosecute someone accused of a crime In 1970 s and 1980 s, the Supreme Court became more likely to make exceptions

Criminal Rights 5 th Amendment Self-Incrimination Double Jeopardy 6 th Amendment Right to an attorney Rights at trial

8 th Amendment: Cruel and Unusual Punishment Capital Punishment Can it be considered “cruel and unusual” punishment?

5 th & 14 th Amendments Cannot be deprived of “life, liberty, or property, without due process of law” Courts’ concerns: inconsistent application, unclear which crimes qualified Hill v. Mc. Donnough (2006) – state standards can be challenged Baze & Bowling v. Rees (2008) – Supreme Court upholds Kentucky’s executions in a 7 -2 vote

Some issues with capital punishment… Financial concerns Executing innocents Type of Execution Expertise of Executioner

Medical Ethics American Medical Association Doctors should preserve life A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories: (1) an action which would directly cause the death of the condemned; (2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned; (3) an action which could automatically cause an execution to be carried out on a condemned prisoner.

Medical Ethics Doctors can’t write prescriptions for executions Where are the drugs coming from? ? ? State laws don’t require a doctor to undertake the execution State laws usually require a doctor to certify death Autopsies reveal “Anesthesia Awareness” could be a problem Florida: Jeb Bush bans executions after a botched attempt (reversed by Governor Crist) Ohio: Executions on hold after executioners failed to find a prisoner’s vein after two hours

The Right to Privacy The word “privacy” does not appear in the Constitution However, in 1965, Supreme Court determined that the right to privacy could be found in “penumbras and emanations” from other amendments

Abortion Rights Roe v. Wade (1973)

Roe v. Wade Justice Blackmun: “The court has recognized that a right of personal privacy…does exist under the Constitution…This right of privacy, whether it be founded in the 14 th Amendment…or in the 9 th Amendment, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”

Private Sexual Conduct Key sexual privacy cases Griswold v. Connecticut (1965) Bowers v. Hardwick (1986) Lawrence v. Texas (2003) Commonwealth v. Wasson (Ky. ) (1992)

A point to remember All of these rights were not actually guaranteed by the Constitution The Constitution only prohibited the national government form taking them away States could, and did, take them Doctrine of Incorporation has led the courts to guarantee these rights

Civil Rights

A note on the paper… Identify a social/cultural difference that can produce conflict, explain the sources of those social/cultural differences, describe the context shaping how those differences feed into the political process, evaluate the influence those differences actually have, with an eye toward variation (a) across space and (b) across time, and reflect on how what you’ve written affects your view of what it takes to be a responsible and ethical citizen.

A note on the paper… Introduces the reader to one form of diversity found in the United States, stressing the genuine roots of these differences as well as the extent to which perceived differences may be false or simplified in the form of stereotypes; Describes conflicts resulting from this diversity, with a special emphasis on how those conflicts have varied across time and across space; Describes the context shaping how those conflicts are perpetuated and/or resolved through compromise within American society and in particular within the American political system; Reflects upon how this awareness of diversity, and the potential for cultural conflict growing from this diversity, can inform your decision of how to participate effectively and responsibly within the political system.

Some areas Gender/Racial disparities in employment Integration of the military Affirmative Action Disparate impact of voter ID laws, language laws Race/Gender and sports Race and “stand your ground” laws

Developments in Slavery 1787 – Constitution

Developments in Slavery 1787 – Constitution “determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons” “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808…”

Developments in Slavery 1787 – Constitution: no abolition for at least 20 years 1807 – abolition of the Atlantic slave trade

Developments in Slavery 1787 – Constitution: no abolition for at least 20 years 1807 – abolition of the Atlantic slave trade 1820 – Missouri Compromise

Developments in Slavery 1787 – Constitution: no abolition for at least 20 years 1807 – abolition of the Atlantic slave trade 1820 – Missouri Compromise 1841 – U. S. v. Amistad

Developments in Slavery 1787 – Constitution: no abolition for at least 20 years 1807 – abolition of the Atlantic slave trade 1820 – Missouri Compromise 1841 – U. S. v. Amistad 1857 – Scott v. Sandford

Developments in Slavery 1787 – Constitution: no abolition for at least 20 years 1807 – abolition of the Atlantic slave trade 1820 – Missouri Compromise 1841 – U. S. v. Amistad 1857 – Scott v. Sandford 1860 – Election of Lincoln

Post-Civil War 13, 14, 15 th Amendments

The Civil War & Change? Southern States also managed to circumvent the requirements of the 15 th Amendment. • • Poll Tax Literacy Test (+ Grandfather Clause) White Primaries (Smith v. Allwright 1944) Terror and Intimidation

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws Civil Rights Cases (1883)

Civil Rights Act of 1875 “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement…applicable alike to citizens of every race and color”

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws Civil Rights Cases (1883) Plessy v. Ferguson (1896)

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws Civil Rights Cases (1883) Plessy v. Ferguson (1896) Brown v. Board of Education (1954)

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws Civil Rights Cases (1883) Plessy v. Ferguson (1896) Brown v. Board of Education (1954) March on Washington, CRA, VRA (1963 -1965)

Post-Civil War 13, 14, 15 th Amendments Jim Crow laws Civil Rights Cases (1883) Plessy v. Ferguson (1896) Brown v. Board of Education (1954) March on Washington, CRA, VRA (1963 -1965) Affirmative Action

The Ideal of Equality of Condition Equality of Opportunity The government takes direct action to reduce economic disparities between citizens The government seeks to eliminate some discriminatory barriers to education, employment, and public accommodation

Affirmative Action University of California v. Bakke (1978) 16/100 seats reserved for minorities

Affirmative Action University of California v. Bakke (1978) 16/100 seats reserved for minorities University of Michigan Minorities receive 20 point “bonus” on 100 pt admissions scale

Affirmative Action University of California v. Bakke (1978) 16/100 seats reserved for minorities University of Michigan Minorities receive 20 point “bonus” on 100 pt admissions scale Fisher v. University of Texas “equal protection of the law”

Affirmative Action University of California v. Bakke (1978) 16/100 seats reserved for minorities University of Michigan Minorities receive 20 point “bonus” on 100 pt admissions scale Fisher v. University of Texas “equal protection of the law” Congressional Districting

Affirmative Action University of California v. Bakke (1978) 16/100 seats reserved for minorities University of Michigan Minorities receive 20 point “bonus” on 100 pt admissions scale Fisher v. University of Texas “equal protection of the law” Congressional Districting Shift in Goals Equal of conditions >>> diversity of views

Bradwell v. Illinois The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. -Justice Joseph P. Bradley

Imagine this… Should quantifiable differences in behavior allow disparate treatment of different individuals?

Imagine this… Should quantifiable differences in behavior allow disparate treatment of different individuals? For example… If statistics indicate men are more likely to cause destructive car accidents, can the government pass legislation that makes men go through a more stringent licensing process?

Craig v. Boren (1976) Beer at 18! Oh, wait. . no beer Supreme Court Disparate treatment could potentially be justifiable, but the state must prove important objectives and the law must address those objectives Such a law harms vendors

Milestones 1963 – Equal Pay Act 1964 – Civil Rights Act 1965 – Griswold v. Connecticut 1973 – Roe v. Wade 1976 – 1 st marital rape law (Nebraska) 1978 – Pregnancy discrimination 2009 – Ledbetter Fair Pay Act

“Indian Law” Pre-Revolution Slavery, Wars, Assimilation Revolutionary War Indian Removal Act (1830) “a trail of tears and death”

William Holland Thomas Adopted by Cherokee as a child Becomes their attorney Principal Chief of the E. Cherokee Was able to own land – Qualla Civil War

Treatment of Remains Surgeon General (1868): “procure Indian crania and other body parts for the Army Medical Museum” Alex Hrdlicka (1900): exhumes, sells remains of 800 Konaig Wickliffe, Dickson Mounds: skeletons as a tourist attraction Arizona (1990): 1500 remains sold (“What you buy is what you own”)

Legal Treatment Johnson v. M’intosh (1821) Only the federal government can purchase native lands Not human, but “an inferior race” No inherent property rights

Legal Treatment Johnson v. M’intosh (1821) Only the federal government can purchase native lands Not human, but “an inferior race” No inherent property rights Worcester v. Georgia (1932) Cherokee Nation is a “distinct community” White law doesn’t apply Jackson: “Marshall has made his decision; now let him enforce it”

Legal Treatment Standing Bear v. Crook (1879) “That had is not the color of yours, but if I prick it, the blood will flow, and I shall feel pain. The blood is of the same color as yours. God made me, and I am a man. ” Court: “An Indian is a man, ” is entitled to certain protections NOT citizens

Legal Treatment Standing Bear v. Crook (1879) “That had is not the color of yours, but if I prick it, the blood will flow, and I shall feel pain. The blood is of the same color as yours. God made me, and I am a man. ” Court: “An Indian is a man, ” is entitled to certain protections NOT citizens Antiquities Act (1906) Remains are archaeological resources, are federal property

Grave Repatriation State v. Glass (Ohio, 1971) Pre-Columbian graves are not human

Grave Repatriation State v. Glass (Ohio, 1971) Pre-Columbian graves are not human 1986: 18, 500 remains are in storage at the Smithsonian

Grave Repatriation State v. Glass (Ohio, 1971) Pre-Columbian graves are not human 1986: 18, 500 remains are in storage at the Smithsonian Slack Farm (KY): between 800 -1200 exhumed Unmarked graves were not protected

Grave Repatriation State v. Glass (Ohio, 1971) Pre-Columbian graves are not human 1986: 18, 500 remains are in storage at the Smithsonian Slack Farm (KY): between 800 -1200 exhumed Unmarked graves were not protected Croteau site (AZ): bulldozers on site until midnight

Tribal Arguments States do not protect unmarked graves Grave desecration infringes on religious freedom The U. S. government has no authority (through treaties) to desecrate graves

NAGPRA “strike a balance between the interest in scientific examination of skeletal remains and the recognition that Native Americans…have a religious and spiritual reverence for the remains of their ancestors”

NAGPRA “strike a balance between the interest in scientific examination of skeletal remains and the recognition that Native Americans…have a religious and spiritual reverence for the remains of their ancestors” Over 30, 000 remains have been repatriated 670, 000 funerary objects

NAGPRA “strike a balance between the interest in scientific examination of skeletal remains and the recognition that Native Americans…have a religious and spiritual reverence for the remains of their ancestors” Over 30, 000 remains have been repatriated 670, 000 funerary objects Kennewick Man

Current Issues % Adults out of the labor force Tohono Navajo Cheyenne San Carlos National Average: 35% 59% 56% 43% 54%

Current Issues % Extreme Poverty ($11, 000 for family of 4) Tohono Navajo Cheyenne San Carlos National Average: 4% 21% 15% 25%

Current Issues 5 x more likely to die from alcohol-related disease 3 x more fetal alcohol syndrome 2 x more likely to commit suicide 32% adult men smoke (21% nationally)