Civil Rights and Civil Liberties The Bill of

Civil Rights and Civil Liberties

"The Bill of Rights was designed to meet the kind of human evils that have emerged. . . wherever excessive power is sought by the few at the expense of the many. " -Justice Hugo Black

Civil Rights • Protections against discriminatory treatment (based on race, sex, beliefs, etc) • The rights of individuals to receive equal treatment in a variety of settings (education, housing, employment, etc)

Civil Liberties • The Constitutional protection of individuals against the government • Basic freedoms protected by law from unjust governmental or other interference • (freedom of speech, freedom to worship, rights of the accused, etc)

Discussion Questions! In your groups: 4 Explain in your own words: Civil Liberties 4 Explain in your own words: Civil Rights 4 How are they similar? What's the difference? 4 What are some examples of each?

Protected in 5 ways: Ø 1. The body of the Constitution Ø 2. The Bill of Rights Ø 3. Other amendments Ø 4. Supreme Court decisions Ø 5. Laws passed by Congress

1. The body of the Constitution: Ø No Bills of Attainder Ø No Ex-Post Facto laws Ø The Writ of Habeas Corpus

Bills of Attainder • A legislative act that declares an individual or a group guilty of a crime and • singles them out for punishment without a trial

Ex-Post Facto Laws • A law making an act illegal that was legal when committed • A law that increases the penalties after the crime has been committed • A law that changes the rules of evidence to make conviction easier

Writ of Habeas Corpus • Latin for "produce the body" • Used to bring a prisoner before a court to determine if the person's imprisonment or detention is lawful • Idea is to keep government from imprisoning people unfairly

2. The Bill of Rights • Civil rights are protected by Amendment 5 and 14 • Civil liberties are protected by Amendments 1, 4, 5, 6, 7, 8 & 9

3. Other relevant amendments • 13 th Amendment (1865) States cannot allow slavery • 15 th Amendment (1868) States cannot prohibit voting rights based on race • 19 th Amendment (1920) States cannot prohibit voting rights based on sex

3. More relevant amendments. . . • 24 th Amendment (1964) States cannot charge a poll tax • 26 th Amendment (1971) States cannot bar 18 year olds from voting

4. Supreme Court Decisions Brown v Board of Education of Topeka (1954) ü The Supreme Court ordered school desegregation “with all deliberate speed” ü Federal marshals were required to open up schools in the South ü The Equal Protection Clause of the 14 th Amendment used in decision

5. Laws passed by Congress • The Civil Rights Acts of 1964 and 1968 • The Voting Rights Act of 1965

The Civil Rights Act of 1964 • Bans discrimination in places of public accommodation on basis of race, color, national origin, or religion (Title II) • Prohibits employment discrimination on the same basis, but including sex (Title VII)

The Civil Rights Act of 1968 • Bans discrimination in the sale or rental of housing on the basis of race, color, religion, or national origin • Known as the "Fair Housing Act" • Prohibits "redlining"

The Voting Rights Act of 1965 • "Pre-clearance" rule • No literacy tests • Federal oversight of registration and voting in South

Discussion Questions! In your groups: 4 What are 5 ways that civil liberties and rights are protected? 4 Which way seems the most secure? The least secure? Why? 4 What are some rights that do not seem guaranteed yet? How could this change?

The Fourteenth Amendment

14 th Amendment • Traditionally considered to be a part of the Bill of Rights • Created a "brand new Constitution" after the Civil War (Justice Brennan) • Greatly expanded the scope of civil rights in the Constitution

Why 14 th Amendment? • Slavery existed for over 200 years • Black Codes passed throughout South after the Civil War ended • Extensive efforts to deny freed slaves any rights during Reconstruction

Radical Reconstruction • All former Confederate states stripped of statehood • New terms for being readmitted included ratifying the 14 th and 15 th Amendments • Military officials in South enforced law

14 th Amendment: Section 1 Citizenship Clause Ø "All persons born or naturalized in the U. S. are citizens of the United States. . . " Ø States cannot deny rights to anyone born in the U. S. due to race, ethnicity or national origin Ø Overturned Supreme Court ruling in Dred Scott v Sanford (1858)

14 th Amendment: Section 1 Privileges and Immunities Clause Ø "No state shall make any law which shall abridge the privileges and immunities of the citizens of the U. S. " Ø Repeats Article IV, Clause 2 (why? ) Ø Protects a citizen's rights from unreasonable state action Ø Has not been effective in protecting rights

14 th Amendment: Section 1 Due Process Clause Ø ". . . nor shall any state deprive any person of life, liberty or property without due process of law" Ø Similar to Due Process Clause of 5 th Amendment, but applies to states

14 th Amendment: Section 1 Due Process Clause ØGovernment must be fair in its actions: ücarrying out laws (procedural due process) üthe laws themselves (substantive due process)

14 th Amendment: Section 1 Equal Protection Clause Ø ". . . nor deny to any person within its jurisdiction the equal protection of the laws" Ø Forbids unreasonable discrimination by the states Ø Used to challenge race and sex-based classifications or discrimination Ø Basis for a wide variety of landmark Supreme Court cases

3 Levels of Protection 4 Strict Scrutiny Standard: 1 Highest hurdle for states 1 Applies to cases of race or national origin 4 Intermediate ("Heightened") Scrutiny Standard: 1 Second highest hurdle for states 1 Applies to gender or sex 4 Rational Basis Test: 1 Lowest and easiest hurdle for states 1 Applies to reasons other than race or sex

Discussion Questions! Due Process: What due process rights should students have regarding suspensions and expulsion? Equal Protection: What are some compelling reasons to treat people differently due to their race? gender?

"Congress shall make no law. . . " Barron v Baltimore (1833): The Bill of Rights only applies to the federal government Two systems of justice - one for the federal gov't and one for the states

Incorporation of the Bill of Rights • The 14 th Amendment was written to extend the protections of the Bill of Rights to the states • The Court refused this interpretation of the law in the Slaughterhouse Cases (1873)

Incorporation of the Bill of Rights • Eventually, the Court began using the Due Process Clause of the 14 th Amendment to apply the Bill of Rights to the states. • Gitlow v New York (1925): 1 st Amendment rights incorporated

Discussion Questions! • What is "incorporation"? • How does this affect states? • How does this affect citizens? • What is the difference: 4 total incorporation 4 selective incorporation • Which type did the Court choose? why?

Selective Incorporation! • In Palko v Connecticut (1937), the Court rejected total incorporation (all at once) • Selective Incorporation= "Case-by-case" basis

Which rights are incorporated? Everything except: 4 keep and bear arms 4 quarter troops 4 grand jury indictment 4 trial by jury in civil cases 4 no excessive bail and fines Why? ?

Key 14 th Amendment cases • Plessy v Ferguson (1896) • Gitlow v New York (1923) • Korematsu v United States (1944) • Brown v Board of Education (1954) • Loving v Virginia (1967) • U. C. Regents v Bakke (1978)

Plessy v Ferguson (1896) Does "separate but equal" violate the 14 th Amendment? What did the Court say? 4 Yes 4 Why? No

Plessy v Ferguson (1896) ü Separate facilities do not violate the 14 th Amendment as long as they are equal

Gitlow v New York (1923) Do provisions of the Bill of Rights apply to the states? What did the Court say? 4 Yes 4 Why? No

Korematsu v U. S. (1944) Does the internment of persons of Japanese ancestry violate the 14 th Amendment? What did the Court say? 4 Yes 4 Why? No

Korematsu v U. S. (1944) ü The need to protect against espionage outweighed Korematsu's rights ü Compulsory exclusion is justified during times of "emergency and peril"

Could internment of a "suspect group" happen again?

Brown v Board of Education (1954) Does "separate but equal" violate the 14 th Amendment? What did the Court say? 4 Yes 4 Why? No

Brown v Board of Education (1954) ü Separate educational facilities are inherently unequal ü School segregation violates the equal protection clause of the 14 th A

De jure v De facto segregation

Loving v Virginia (1967) Do state laws against interracial marriage violate the 14 th Amendment? What did the Court say? 4 Yes 4 Why? No

Loving v Virginia (1967) ü State laws that ban interracial marriage violate the equal protection clause of the 14 th A.

Do marriage rights extend to all people?

U. C. Regents v Bakke (1978) Do university affirmative action policies violate the 14 th Amendment? What did the Court say? 4 Yes 4 Why? No

U. C. Regents v Bakke (1978) ü Race may be considered as one factor in college admissions ü Schools may not use a quota system

Is Affirmative Action fair?

Discussion Question! • Plessy v Ferguson (1896) • Gitlow v New York (1923) • Korematsu v United States (1944) • Brown v Board of Education (1954) • Loving v Virginia (1967) • U. C. Regents v Bakke (1978) Which two cases are the most important? Why?