Government 2305 Williams
Civil Liberties and Civil Rights
It seems that no matter how many times I discuss these two concepts, some students invariably get them confused. Let us first start by stating the basic definitions of each.
Civil liberties are the basic liberties we have from arbitrary action by the government. What I think confuses students is that the book defines civil liberties as the specific individual rights that are constitutionally protected against infringement by the government. In addition, the primary protector of individual rights is the Bill of Rights of the U.S. Constitution. These are the first ten amendments to the U.S. Constitution.
Civil Rights, on the other hand, are the rights of all persons to be treated equally under the law. This concept is much less clear to understand, and rather than having specific guarantees for individuals, such as the Bill of Rights, many of the ideas that support civil rights have developed over the years in response to the demand for greater participation within the government by its citizens. Let us look at each of these in more depth.
Civil Liberties
Again, civil liberties protect us from government
interference in certain areas of our lives.
The rights insured by the First Amendment – the freedoms of expression,
religion, and assembly – are essential to a democracy. If people are to govern themselves, they need
access to all available information and opinions in order to make intelligent,
responsible, and accountable decisions. If the right to participate in public life is
to be open to all, then Americans, in all their diversity, must have the right
to express their opinions.
Individual participation and the expression of ideas are
crucial components of democracy, but so is majority rule, which can conflict
with individual rights. The majority
does not have the freedom to decide that there are some ideas it would rather
not hear, although, at times, the majority tries to enforce its will upon the
minority.
The First Amendment to the U.S. Constitution is considered
the cornerstone to our basic freedoms.
It provides protection for five essential areas of individual behavior:
“Congress shall make no law respecting the 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 to peaceably to assemble,
and to petition the Government for a redress of grievances.”
Freedom of expression
is the most basic of democratic rights. This
freedom allows citizens to influence government and to act to protect their
other rights.
People are not free unless they can freely express their
views. A democracy depends on the free
expression of ideas. Thoughts that are
muffled, speech that is forbidden, and meetings that cannot be held are the
enemies of the democratic process.
Totalitarian governments know this, which is why they go to enormous
trouble to limit expression. Though
freedom of expression is not an absolute right, it has received broad
protection from the courts in recent decades.
Keep in mind: NO
RIGHT IS ABSOLUTE! Where do you draw the
line between what is permissible and what is not permissible?
To a large degree this is what I preach about in this
class. Many people often want to limit
expression. Ideas can be viewed as
threats.
Today we seem to have more government protection of being
able to express ourselves than in the past.
In earlier historical periods, Americans were less free to
express their political views.
1) the Sedition Act of 1798 made it a crime to print false or
malicious newspaper stories about the president or other national officials.
2) Also,
during the Civil War era, as well as the “red scares” of the 1920s and 1950s,
limits on free expression were imposed.
In the modern period, free expression has been protected by
the Supreme Court’s development of standards regarding when the government
could infringe on political expression.
The Supreme Court has generally devised “tests” for determining certain criteria when applied to questions of acts being determined to be constitutional or not. In the modern period, free expression has been protected by the Supreme Court’s development of standards regarding when the government could infringe on political expression.
1) the clear-and-present-danger test stipulated that
political expression can be restricted only if speech was “of such a nature as
to create a clear and present danger of substantive evils” to the nation’s
security. 1919 (Schenck
v.
2) Supreme
Court distinctions between verbal speech and “symbolic speech”
mean that the government can prohibit actions that threaten a legitimate public
interest as long as the main purpose is not the inhibit free expression. Example: the burning of a draft card.
3) The
court held that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable. Example: 1989
4) Issues
of prior restraint. Refers to a
government’s actions that prevent material from being published. In a word, it is a form of censorship. If the government thinks a speech or
publication might threaten “national security”, it often tries to prevent that
from occurring, “prior to the fact”. The
Court has generally struck down any attempts by the government to do this.
Keep in mind that the Bill of Rights did not originally
apply to the states. The Bill of Rights
was considered necessary to protect citizens from the perceived abuses of the
national government. The first statement
of the First Amendment gives an pretty good idea of
what they meant by this: “Congress shall make no law….”.
It was not until a 1925 Supreme Court case that the
protections of the Bill of Rights began to be extended to all levels of
government. In the case of Gitlow
v
“No State shall abridge the privileges or immunities of
citizens of the
This began an era of the Court where the doctrine of selective
incorporation began. This means that
the Court began to apply selected parts of the Bill of Rights to apply to the
states as well as the federal government.
Over time the Court gradually applied the protections under the Bill of
Rights to the states.
1) States
cannot restrict free expression except when such expression is almost certain
to result in imminent lawlessness.
2) The
right of free expression takes precedence over the mere possibility that
exercising the right may have undesirable consequences.
3) The
Court has broadly held that while “hate speech” cannot be silenced, hate crimes
can be prosecuted.
4) The
time, place, and conditions of public assembly can be regulated.
5) Any
government effort to regulate the content of a message is highly suspect.
6) Libel,
slander, and obscenity are not protected as free expression.
“Congress shall make no law respecting the establishment
of religion,…”
The
establishment of religion
clause has
been interpreted by the courts to mean that government may not favor one
religion over another or support religion over no religion. Though assistance to religion is sometimes
allowed, it is NOT to create the environment for an official religion of the
state.
The
Supreme Court has stated that a “wall of separation” must be maintained
between the church and the state. State
aid for educational purposes given to church-affiliated schools must primarily
serve secular educational objectives. The
court has consistently reaffirmed the ban on state-sponsored prayer.
“…or prohibiting the free exercise thereof;….”
The
free-exercise of religion clause stipulates that Americans are free to hold any
religious belief they choose. When
possible, the Supreme Court tries to balance any potential conflict between the
“free exercise” and “establishment” clauses, though sometimes one must yield to
the other.
More for state and local government class, since 95% of all
trials occur there. Nevertheless, it is
important to know some things about the legal system at the national level,
since the ultimate authority of what is legal comes from the supreme
court.
Stages of the criminal justice process:
1) crime
2) arrest
(warrant)
3) prosecution
4) trial
5) verdict
Protection
of persons accused of crimes has its roots in the concept of procedural due
process of the law.
“Due process” refers to the legal protections that
have been established to preserve the rights of the individual.
“Procedural due process” refers primarily to
procedures that authorities must follow before a person can legitimately be
punished for an offense.
Specific procedural protections for the accused are spelled
out in the Fourth, Fifth, Sixth, and Eighth Amendments.
Police cannot arrest a citizen without a reason. The need evidence to arrest and courts need
evidence to convict. Before making an
arrest, police need what the courts call “probably cause” to believe that
someone is guilty of a crime. The Fourth
Amendment is quite specific in forbidding unreasonable searches and
seizures. To prevent abuse of police
power, the Constitution requires that no court may issue a search warrant
unless probable cause exists to believe that a crime has occurred or is about
to occur. Warrants must specify the area
to be searched and the material sought in the police warrant.
A warrant is NOT a constitutional requirement for a
reasonable search, however. Most
searches in this country take place without warrants.
Exclusionary rule:
used by the Supreme Court since 1914.
This rule prevents illegally seized evidence from being introduced in
court, but until 1961 this only applied to the federal government. In the case of Mapp v.
Self-incrimination. The Fifth Amendment states that no person
shall be compelled to testify against himself.
This was firmly established by the Supreme court
in the case of Miranda v.
Right to counsel. The Sixth Amendment always protected accused
in federal courts. Majority of cases in
Cruel and unusual punishment. The Eighth Amendment protects persons against
cruel and unusual punishment. Historically
the Court has upheld the death penalty, but this continues to be (at times) a
hotly debated topic as to whether the death penalty itself constitutes cruel
and/or unusual punishment, as well as how the death penalty is carried out.
Issues of crime and punishment in
Summary:
The
The Bill of Rights (as arranged by function)
Protection of free expression:
Amendment 1: freedom of speech, press, and assembly; freedom to petition government.
Protection of personal beliefs:
Amendment 1: no government establishment of religion; freedom to exercise religion.
Protection of privacy:
Amendment 3: no forced quartering of troops in homes during peacetime.
Amendment 4: no unreasonable searches and seizures.
Protection of defendant’s rights:
Amendment 5: grand-jury indictment required for prosecution of serious crime; no second prosecution for the same offense; no compulsion to testify against oneself; no loss of life, liberty, or property without due process of law.
Amendment 6: right to a speedy and public trial by a local, impartial jury; right to legal counsel; right to compel the attendance of favorable witnesses; right to cross-examine witnesses.
Amendment 7: right to a trial in civil suit where the value of controversy exceeds $20.
Amendment 8: no excessive bail or fines; no cruel and unusual punishments.
Protection of other rights:
Amendment 2: right to bear arms.
Amendment 5: no taking of private property for public use without just compensation.
Amendment 9: unlisted rights are not necessarily denied.
Amendment 10: powers not delegated to the national
government or denied to the states are reserved for the states or the people.
Civil Rights
Civil rights (or sometimes referred to as equal rights) involves
issues of equality. As stated earlier, all
persons have the right to be treated equally under the law, and have equal
access to society’s opportunities and public facilities.
Disadvantaged groups (primarily minorities) have had to
struggle for equal rights.
The original Constitution does not mention the word “equality”. The words “all men are
created equal” actually comes from the Declaration of Independence,
penned by Thomas Jefferson. Not even the
Bill of Rights mentions equality.
So where do our ideas of people being treated “equally” come
from? The Bill of Rights does have
implications for equality, because it does not limit its guarantees to specific
groups in society.
The first and only place in which the idea of equality
appears in the Constitution is in the Fourteenth Amendment.
This one was of the three major amendments passed at the end
of the Civil War. (The Thirteenth
Amendment abolished slavery and the Fifteenth Amendment extended the right to
vote to former slaves)
As we mentioned above, the Fourteenth Amendment forbids the
states from denying to anyone “equal protection of the laws”. Just these few words were enough to begin
assuring that all Americans were treated equally.
Disadvantaged groups have had to struggle to gain a variety
of rights: voting, education, employment, disabilities. To a large degree, this struggle to achieve
“equality” has been a struggle of the African Americans in our society. Other groups:
women, elderly, Hispanics, Asian Americans, Native Americans, and the disabled.
The struggle of African Americans to achieve equal rights is most notable in studying American history. Most African Americans originally arrived in this country as slaves. It isn’t my intent to go into a great amount of detail here on the history of the Black Civil Rights movement, but there are some things you need to be sure that you are aware of.
One of the events that helped lead to the Civil War was the Supreme Court case of Dred Scott v. Sandford (1857), sometimes referred to simply as the Dred Scott case. The essential thing to note about this case was that it ruled that slaves were property, not citizens, and thus were not entitled to many rights under the law.
With the end of the Civil War (1865) came the end of
slavery. As mentioned above, the
Thirteenth Amendment to the Constitution officially ended the practice of
slavery in all of the
This practice of “separate
but equal” continued until the case of Brown v. Board of Education (1954). This case is probably the single most
important case of the 20th Century by the Court. Supreme ruled that separate but equal
violated the equal protection of the laws clause of the Fourteenth Amendment. It ordered states to remove these barriers
“with all due speed”.
Still, progress was slow as Southern states continued to resist federal mandates. In 1964 Congress passed the Civil Rights Act. This hallmark piece of legislation provided for the following:
1) Prohibited federal aid to school districts that remained segregated
2) Made
racial discrimination illegal in hotels, restaurants, and other places of
public accommodations
3) Forbade
discrimination in employment on the basis of race color, national origin,
religion or gender
4) Created
the Equal Employment Opportunity Commission (EEOC) to monitor and enforce
protections against job discrimination
5) Provided
for withholding federal grants from state and local governments and other
institutions that practiced racial discrimination
6) Strengthened
voting rights legislation
7) Authorized
the U.S. Justice Department to initiate lawsuits to desegregated public schools
and facilities
There are two types of segregation that you need to be aware of:
De facto segregation:
segregation that is a consequence of social, economic, and cultural bias.
De jure segregation: segregation that is based on law.
The Civil Rights Act of 1964 was a major step towards ending
de jure segregation.
However, it still did not address a very important element of the rights
of African Americans, and that was their right to vote. We will discuss this more in the next unit,
but this was another major area of trying to restrict equality. The Fifteenth Amendment, adopted in
1870, guaranteed that former slaves had the right to vote, however, Southern
states used a variety of laws to circumvent this. Poll taxes, literacy tests, and white only
primaries helped to exclude African Americans their right to vote.
The Voting Rights
Act of 1965 prohibited any
government from using voting procedures that denied a person the vote on the
basis of race or color.
Equality of result
is the aim of policies intended to reduce or eliminate de facto segregation.
Affirmative action programs aim to provide full and equal
opportunities in employment, education, and other areas for women, minorities,
and individuals belonging to traditionally disadvantaged groups. Opposition to affirmative action, especially
to what has been called reverse discrimination, has intensified in recent years
and may be subject to alteration.