Civil Liberties and Civil Rights: Balance or Conflict?
(Chapter 13)

I. Civil Liberties and Civil Right, Defined

American political institutions have been used to draw the line between individual autonomy and those areas that can be regulated or prohibited by society and government. At the root of these decisions about the limits of personal freedom has been the question of what the proper role of government is. Civil liberties and civil rights are the two concepts that lie at the heart of this controversy. While the two can be seen as reinforcing each other, they can also clash.

A. Civil liberties are those areas of social life the American people believe should remain free from government interference.

1. Such areas have traditionally included freedom of expression and religion.
2. As a practical matter, however, the American system does not allow for unbounded freedoms in these areas.

B. Civil rights are those areas of social life the American people believe require government action to ensure that fairness and equality are upheld.

1. Such areas have traditionally included the rights of the accused and affirmative action issues like equality of opportunity.
2. As a practical matter, civil rights for all citizens have not always been guaranteed in the American system.

C. Most Americans do not have a problem with the concepts of civil rights and civil liberties. The controversy arises when people are confronted with specific situations requiring them to balance competing rights.

D. Even with the principles of civil liberties and civil rights, the outcomes the system produces are not always the same for all people. Women and minorities can attest to this inequality.

II. The Colonist and Early Americans

The individuals who first colonized British North America came to the new land to escape religious, social, and economic persecution. These colonists often created documents that established and defined the liberties of the people.

A. As relations with England soured, Americans believed that English rule threatened their liberties. The English authorities had limited speech and assembly rights and had instituted a policy by which English authorities could search and seize homes, possessions, and other items without specific warrants. People felt less secure in their freedoms.

B. Following the Declaration of Independence, the new state governments created constitutions that limited government authority over the civil liberties of citizens.

C. At the federal level, the new Constitution was criticized for not providing specific lists of rights and protections for individuals.

1. The Anti-Federalists attacked the new document because it lacked a bill of rights.
2. As a compromise to gain passage of the new Constitution, James Madison agreed to support a bill of rights. He faced pressure from many religious groups to ensure religious freedom for an Americans.
3. Madison himself drafted the legislation that would become the Bill of Rights. He originally created a list of seventeen, but it was eventually reduced to twelve. Only ten of these twelve were ultimately ratified by the states.

D. These ten amendments to the Constitution became known as the Bill of Rights.

1. The first eight amendments guarantee individual liberties like speech and religion.
2. The Ninth Amendment provides that rights not enumerated were not lost by the people.
3. The Tenth Amendment provides that powers not delegated to the national government were retained by the people or the states.

E. Many of these amendments were specifically designed to apply only to the national government.

1. Chief Justice Marshall in Barron v. Baltimore (1833) made it clear that the Bill of Rights applies only to the federal government.
2. The Supreme Court did not change this view until well into the twentieth century.

III.  Freedom of Expression

Perhaps the most fundamental American value, includes the right to free speech and a free press. The idea of free expression is necessary for a popular government. Where the lines should be drawn is a key question for any free society.

A. Free speech has been protected by the Supreme Court more or less forcefully at different periods in the nation's history.

B. Justices Oliver Wendell Holmes and Louis Brandeis pushed the Court to protect free speech from state regulation via the "due process" clause of the Fourteenth Amendment.

C. Justices Hugo Black and William O. Douglas drove the Supreme Court to give speech a "preferred position" by declaring that free speech is necessary for a democratic society.

D. By the end of the twentieth century, the Court has declared that so-called symbolic speech like flag burning is a protected form of free speech.

E. Free speech law has developed extensively since the earliest days of the nation.

1. In Schenck v. United States the Court upheld the conviction of an avowed socialist who argued that draftees should resist induction.
a. Justice Holmes argued that free speech is not an absolute right.
b. Holmes made a distinction between protected and punishable speech.
c. Speech may be restricted or punished if that speech creates a "clear and present danger."
d. This standard was controversial because people differed in the belief of whether or not a real danger existed.
2. In Gitlow v. New York (1925), Gitlow was an avowed communist found guilty of advocating the overthrow of democracy and the capitalist system employed by the United States.
a. Gitlow argued that the state law that convicted him was unconstitutional because the right to free speech was incorporated via the "due process" clause of the Constitution.
b. The Court accepted the idea of incorporation, however, it changed Holmes' "clear and present danger" standard to the less strict "bad tendency" standard.
c. Under the "bad tendency" standard, speech could be punished if it might produce social or political turmoil.
3. In Whitney v. California (1927), Justices Brandeis and Holmes argued that the "bad tendency" standard was illegitimate. In this case, the possible danger involved by Whitney's actions were extremely remote and could only be seen in the far distant future. Brandeis argued that the danger must be imminent.
4. In Brandenburg v. Ohio (1969), the Court instituted the "clear and present danger" standard and overruled the Whitney decision.
5. Texas v. Johnson (1989) protected the symbolic speech activity of flag burning. The Court reasoned that speech cannot be suppressed just because society finds the speech or act offensive or disagreeable.

F. Not all speech is protected, however. Obscenity is by definition an unprotected form of speech.

1. Much controversy has surround the definition of obscenity and what speech, art, or other materials violates a community's standards.
2. The traditional test for obscenity has been whether the object or act in question has a "tendency" to "deprave and corrupt" the impressionable members of a community.
3. The modern standard for obscenity does not concern itself with what the effect the object or act may have on the most impressionable.
a.  The modern standard, as determined by Justice William Brennan in the Roth and Alberts cases (1957), is concerned with whether an average person, using contemporary community standards, finds that the object, taken as a whole, is "utterly without social importance."
b.  This standard may be more appropriate, but it has many difficulties. Determining who an average person is, and what the community standards are, is a difficult task.
4. The national standard of obscenity has been challenged on many occasions. In Miller v. California (1973) and Paris Adult Theater v. Slaton (1973), the Court allowed local communities to have more discretion in the banning of materials.

IV. Freedom of the Press

The other bedrock principle of a free society is a free press. Free speech and press are related concepts. The ability to reach thousands or millions of people with ideas transmitted via television, radio, or print poses some special problems for government. The fundamental concern has been whether or not government can screen expression that reaches people via the press and the media. Restrictions on printed expression have been less readily embraced than those on electronic media.

A. There are competing views about the freedom of the press. Some argue that the press must not have to secure permission before something is published or broadcast. These individuals believe that there should be no prior restraint of the media. Others argue that there should be no prior restraint and there should be limited liability of the press once something is published.

B. In Near v. Minnesota (1931), the Court established an almost complete end to prior restraint of any publication.

1. The case involved the right to publish material critical of a state public official.
2. This case established the rule that prior restraint of the press is virtually always unconstitutional. 

C. New York Times v. Sullivan marked an important victory for a free press during the civil rights movement.

1. The paper ran an ad that claimed that Montgomery city officials had illegally harassed black protesters.
2. The city commissioner in charge of the police sued and said the paper was responsible for libeling him. The state courts found in favor of the commissioner.
3. On appeal, the Supreme Court overturned the lower court decision and sided with the newspaper.
4. The freedom of the press has been shielded from prior restraint, and limitations have been placed on the ability of government to punish the press for what it has published.

D. The freedom of the press is not unlimited, however. Two exceptions to the right of freedom of the press concerned national security and fair trial issues.

1. Cases involving national security issues have been limited. The 1973 Pentagon Papers case involved the publication of documents regarding the Vietnam War. The courts refused to employ prior restraint.
2. American courts have been aware too that media coverage may impact a person's right to a fair trial. Generally, however, courts have sided with the First Amendment and have not barred media coverage of judicial proceedings.

V. Freedom of Religion

Because of the importance of religious beliefs and practices to the colonists, it is not surprising that the freedom of religion contained in the First Amendment has been a critical issue to American democracy. 

A. Nine of the thirteen original colonies had a state-sanctioned church. With Jefferson's famous phrase about a "wall of separation between Church and State," a new view of religion and government emerged.

B. There are three basic views about the proper character of the separation of church and state.

1. Some argue for a strict separationist position in which the government plays no role in religion.
2. Some have argued that government may not favor one religion over another but that government may provide general support to all religions.
3. The final position argues that the government should actively promote religion in order to bolster the nation's moral and spiritual health. This final position does not, however, call for one religion to be favored over others.

C. The establishment clause of the First Amendment states that Congress may not pass a law respecting the establishment of religion.

1. This clause is both dear and vague. It has been interpreted as saying that government may not establish an official religion or favor one religion over another.
2. The clause is unclear about whether government may use tax dollars or public facilities to assist or aid religion, even indirectly.
3. Proponents of support have argued that the resources are going to help children -- not a specific religion.
4. The Supreme Court has developed a three-pronged test for determining if such aid is constitutional.
a. The aid must have a secular purpose.
b. The effect of the aid must neither advance nor impede religion.
c. The aid must not create a "excessive entanglement" of church and state.

D. The free exercise clause concerns the freedoms individuals possess to follow their religious beliefs and practices. The free exercise clause was designed to protect divergent religious beliefs and practices.

E. During World War II, some serious conflicts occurred between religious beliefs and patriotism. Originally, the Supreme Court sided with the government.

1. In Minersville School District v. Gobitis (1940), the Supreme Court held that the freedom of religion did not exempt students from a mandatory flag salute.
2. The Minersville Court reasoned that government had an interest in instilling patriotism.
3. Two years later in West Virginia v. Barnette (1942), the Court overruled Minersville.
4. In Barnette a mandatory Pledge of Allegiance could not supersede religious freedoms. The Court held that government could not interfere into what an individual believes.

F. Congress sought to limit the intrusiveness of government into private religion by passing the Religious Freedom Restoration Act in 1993.

1. The Supreme Court invalidated the act in 1997.
2. The Court reasoned that the act gave religious activity more protection than is required.

G. The American system of separation of church and state has been seriously tested over prayer in public schools.

1. While the Supreme Court declared that mandatory school prayer was unconstitutional in 1962, certain schools still employed a prayer.
2. In 1982 the Supreme Court ruled that a Louisiana statute authorizing daily voluntary prayer was unconstitutional.
3. So-called "moments of silence" for "meditation and prayer" have also been struck down. High school graduation prayers have also come under scrutiny.
4. President Clinton has issued some basic guidelines for how schools should deal with religious issues. In essence, student-initiated religious activity should face the same limitations as other nonacademic activity. Voluntary, student-led religious activities should not be disallowed, however.

VI. Criminal Rights

Another area of great concern for civil rights and liberties is criminal rights. The American political and legal system provides for certain rights for a criminal defendant. Government operates with a number of restrictions placed upon it in regards to criminal prosecution and investigation. The real move to regulate the conduct of law enforcement did not begin until the 1960s. Some have argued that these actions have made society and law soft on crime.

A. In the 1960s, the Supreme Court extended the rights of criminal defendants by incorporating the protections against searches and seizure, cruel and unusual punishment, and the right to counsel into the "due process" clause of the Fourteenth Amendment.

B. The Fourth Amendment provides citizens with protection against unreasonable searches and seizures. Police must obtain a specific warrant based on probable cause. 

1. Evidence that is obtained in a way contravening the Fourth Amendment is not admissible in court.
2. The inadmissibility of such evidence is known as the exclusionary rule and was developed first in Weeks v. US (1914) and applied to the states in Mapp v. Ohio (1961).
3. In 1984, the Supreme Court created a "good faith" exception to the exclusionary rule. The Court in 1984 also decided that if evidence would have been discovered inevitably, the materials are admissible. This is known as an "inevitable discovery" exception. These exceptions have eroded some of the strength of the exclusionary rule.

C. The right of criminal defendants to have counsel in a state trial was established in the 1963 case Gideon v. Wainwright. Gideon claimed that without counsel, the "due process" clause of the Constitution was violated. The Court agreed.

1. Following from Gideon, suspects may assert their right to counsel prior to trial.
2. In Escobedo, a suspect has a right to counsel when the focus of an investigation turns to an individual and attempts to elicit a confession.

D. The Fifth Amendment provides that citizens cannot be compelled to testify against themselves.

1. Miranda v. Arizona (1966) states that once individuals are taken into custody, they must be informed that they have a right to remain silent.
2. The right against self-incrimination applies any time a suspect is questioned.

E. The Sixth Amendment provides that citizens have the right to a jury trial. The jury must be impartial. In Baston v. Kentucky (1986), the exclusion of potential jurors because of their race was found to be illegal.

F. Cruel and unusual punishment is forbidden by the Eighth Amendment. The views of Supreme Court have changed from time to time on the permissibility of the death penalty. Some have said that the practice does constitute cruel and unusual punishment while others claim that it is used disproportionately against minorities.

VII. Civil Rights (1865-1950s)

Prior to the Civil War, civil liberties and civil rights were very similar concepts for white men. The distinction between them became more clear as women and minorities began to claim these rights and liberties for themselves. The Dred Scott case, the Civil Rights Act of 1875, and the Civil War amendments to the Constitution all highlight the challenge to the status quo.

A. The Civil War amendments are the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were added to the Constitution following the conclusion of the war and followed on the heels of President Lincoln's Emancipation Proclamation, which freed slaves in the rebel states

B. The Thirteenth Amendment, made law in 1865, made slavery illegal in the United States.

C. The Fourteenth Amendment, made law in 1868, was designed to safeguard the position of former slaves in society.
 

1. The Fourteenth Amendment provided that former slaves were citizens of the US and the state wherein they reside.
2. No state could abridge the privileges and immunities of its citizens.
3. Life, liberty, or property could not be taken without "due process" of law.
4. All persons within a state's jurisdiction were entitled to the equal protection of the law.
5. These measures were designed to protect former slaves, but they did so without specifically mentioning them.
.
D. The Fifteenth Amendment, made law in 1870, removed color barriers to voting. Congress was given the power to ensure that former slaves would be able to vote.

E. While the Civil War amendments looked to create a more equal and fair society, the Supreme Court, in the early cases stemming from these amendments, took a narrow interpretation of these laws.
.

1. In the Slaughterhouse Cases (1873), the Fourteenth Amendment was interpreted as not applying to whites.
a. The Court also declared that the Fourteenth Amendment's protections include only those privileges and immunities which are connected to the federal government -- for example things involving interstate commerce, travel abroad, etc.
b. In Slaughterhouse the Court argued that state governments could define the rights of its citizens as narrowly as it wanted. 
2. The Civil Rights Act of 1875 was found unconstitutional by the Supreme Court in the civil rights cases of 1883.
a. The Supreme Court found that the Civil Rights Act only prohibited state action that would be discriminatory. The law did not prohibit discrimination by private individuals.
b. The Court called on blacks to stop seeking "special treatment."
c. The practical effect of the ruling was the government's end to active attempts at ensuring racial equality.
3. The Supreme Court sanctioned racial separation in Plessy v. Ferguson (1891). The case involved a Louisiana state law that called for separate but equal accommodations on trains for people of different races. Plessy's lawyer argued this violated the equal protection clause of the Fourteenth Amendment.
a. The Court found that since whites were separated from blacks as well as the reverse, there is no violation of the Fourteenth Amendment. In other words, the law applied to both races so it could not be discriminatory.
b. Justice Harlan dissented and argued that the separation creates a "badge of inferiority" for blacks. Harlan argued that the Constitution is color blind.
.
F. The modern civil rights movement had difficulties winning battles for equality until well into the 1930s. During the 1930s, the legal tide began to turn.
.
1. The Supreme Court began to force states to allow individuals access to state institutions. Often, as in the case of Lloyd Gaines, the Court required states to establish a separate educational institution or admit blacks to the previously all-white institutions. The question remained, however, how equal these new facilities were.
2. In Sweatt v. Painter (1950) the Court held that separate institutions that had inferior facilities were unacceptable.
3. Programs that segregated blacks once they were admitted to a white program were found unconstitutional in McLaurin v. Oklaboma (1950).
4. AlI of these cases provided that separate facilities must in reality be equal.
.
G. In Brown v. Board of Education of Topeka, Kansas (1954), the Supreme Court held that separate was inherently unequal. The NAACP brought this case, and future Supreme Court Justice Thurgood Marshall argued the case in court. .
1. The Brown decision declared that separate institutions of public learning were unconstitutional.
2. At the time of the decision, seventeen states and the District of Columbia managed segregated school systems.
3. Initially, the Court's decision did not change much. Blacks were still not attending schools with whites, and blacks in southern states were not being allowed to vote.

VIII. Civil Rights (1960s-Present)

In order to combat the pernicious discrimination that continued throughout the nation and especially in the South, the federal government sought to create stronger civil rights legislation.

A. After pressure throughout the early sixties, President Johnson moved for passage of the Civil Rights Act of 1964.

1. The act specifically denied racial discrimination in regards to federal programs.
2. The legislation prohibited discrimination in services, unions, and public places.
3. The legislation also permitted the US Attorney General to represent citizens attempting to desegregate state facilities.

B. In 1965, Congress passed the Elementary and Secondary Education Act (ESEA). The ESEA provided federal assistance to school districts with low-income students. In 1968, Congress passed a law prohibiting discrimination in the sale of housing.

C. The Jim Crow laws of the South had virtually excluded all blacks from participating in elections by instituting a complicated system of laws that required special qualifications or skills in order for a person to vote. The Voting Rights Act of 1965 was designed to change this situation. As a result, black voter registration has increased.

D. Affirmative action policies were designed to go beyond the legislation mentioned above and were designed to redress past discrimination by giving members of a discriminated group certain preferences in the present. These policies remain controversial.

1. The Civil Rights Act of 1964 was designed only to address direct discrimination. Broad classes were not protected.
2. Some of the language of this legislation seems to specifically deny that such preferences are acceptable.
3. The affirmative action policies that have been put in place, such as minority preferences in school admissions, have been challenged on the grounds that they amount to reverse discrimination. 
a.  Regents of the University of California v. Bakke was a case involving a claim of reverse discrimination.
b.  In this case, a white applicant was denied admission to medical school even though his scores were higher than those of many minority applicants who were given admission.
c.  The Court agreed with Bakke that his Fourteenth Amendment rights had been violated because the school set aside a specific number of admission slots for minorities.
d.  The Court did say, however, that race could be considered in admission. It simply could not be the sole criteria used.
4. In United Steelworkers of America v. Weber, the Court held that certain affirmative action policies are acceptable if the programs were voluntary. Future Chief Justice Rehnquist argued that policies must be race-blind and race-conscious.

E. Job preferences for protected classes such as women have been found to be acceptable practices. In Johnson v. Transportation Agency, Santa Clara County, the Court held that employers may consider race and sex in hiring decisions.

F. Many affirmative action programs have come under assault in the 1990s. The Supreme Court found quotas and set asides to be invalid. Diversity concerns in the workplace make sure that the issue of preferences will be a difficult issue to resolve.

IX. Women's Rights

In addition to the civil rights and liberties concerns raised by the issue of race, discrimination based on sex has also been prevalent.

A. While women could not be bought and sold like slaves, women were not vested with a complete set of rights. A woman's legal position was covered by the concept of "coverture."
 
1. Coverture was an English legal concept wherein a marriage of a man and women creates one person. That person is the husband.
2. Women were denied the right to vote, hold property, sue in court, and many other privileges that came with personhood.
3. Throughout much of history, the courts upheld state and federal laws that restricted the activities and rights of women.
4. Women were not granted the right to vote throughout the country until the ratification of the Nineteenth Amendment in 1920. Gender discrimination continued, however.
.
B. The women's right movement can be traced back to Seneca Falls, New York, in 1848. The Seneca Falls Convention established a statement of principles and demands, the "Declaration of Sentiments," and a political alliance between the leaders of the movement.

C. The women's movement found political victories difficult to manage at first. Former male slaves did not rally behind the move for women's suffrage.
 

1. Women of all races continued to fight for suffrage and after 1910 states began to extend suffrage to them.
2. President Wilson urged the approval of the Nineteenth Amendment, which forbid the denial of the right to vote based on sex.
.
D. Even with the suffrage victory, women had a long way to go before equality was realized. The women's movement began to push politics again on the 1960s and 1970s with the Equal Rights Amendment (ERA). The ERA called for equal rights for women in all phases of society.
 
1. The ERA passed congress easily in 1972 and was sent to the states to ratify.
2. While support swelled early, opposition soon built and enthusiasm dissipated.
3. The ERA failed to win enough support for ratification by the states.
.
E. Women's rights issues have included the freedom of choice. In 1973, the Supreme Court declared that individuals have a right to privacy that includes a women's right to terminate a pregnancy. The case, Roe v. Wade, declared that states may not prevent a women's right to an abortion. 
 
1. Justice Blackmun introduced a trimester scheme of considering the legitimacy of an abortion. 
2. Blackmun also argued that states must consider the viability of the fetus.
.
F. The issue of abortion remains one of the most controversial. While most of the public is in favor of abortion rights for women when there is an issue of safety or the health of the mother, it does not support abortion for economic or social convenience.

G. Women have fought for equality in education. The ESEA discussed above was amended by Title IX to forbid discrimination based on gender in any education program that received federal funds. 
 

1. Title IX has had a tremendous impact on academic and sports programs.
2. The way women are treated at an early age within the educational system has a profound influence on their career choices later in life.
.
H. The issue of equality for women and minorities is far from over. This is especially evident in the American workplace. ..
1. Title VII of the Civil Rights Act of 1964 forbids gender discrimination in the workplace.
2. This said, however, serious inequalities remain. Women and minorities make less money for the same job than do white men.
3. Occupations also remain gender specific. Certain jobs are overwhelmingly held by men and others by women.
.
I. The issues of race and gender appear to be enduring questions for the American political system.