POLSC232: American Government

5a. Distinguish between civil rights and civil liberties

• What are civil liberties? What are civil rights? How are the two different?
• How were these rights established in the early days of the American Republic?

Civil liberties refer to the rights and freedoms individuals possess that the government cannot infringe upon, according to the U.S. Constitution. Politicians continue to debate which specific rights should be included in this list.

The Bill of Rights, the first ten amendments to the Constitution, provides the legal and political basis for civil liberties in the United States. The Founders added the Bill of Rights to the Constitution to restrict the federal government from infringing on the lives of individuals and minority populations. They wanted to ensure the government could not violate individual rights, as the British had compromised theirs.

The rights in the Bill of Rights fall into several broad categories: freedom of expression, the right to keep and bear arms, the protection of person and property, due process rights, the rights of the accused, protection from disproportionate punishments, and the right to privacy.

Before adding the Bill of Rights, the Constitution still provided for basic civil liberties, such as the right to request a writ of habeas corpus, a document that lists the reasons for an individual's arrest. The Constitution also prevents the federal government and the states from issuing bills of attainder, laws that punish an individual without giving them a trial, and ex post facto laws, laws that retroactively make an action illegal.

Civil rights refer to the right to be free of discrimination. For example, civil rights deal with issues of equal access to social services, public resources, and the ability to participate in political activities. While civil liberties were a major concern to the Founders, civil rights did not enter the mainstream American political consciousness until Congress passed and the states ratified the 13th, 14th, and 15th Amendments to the Constitution after the Civil War.

• The 13th Amendment (1865) outlaws slavery and involuntary labor except when used as punishment for a crime.
• The 14th Amendment (1868) provides birthright citizenship, prevents states from violating due process, and holds that a state may not "deny to any person within its jurisdiction the equal protection of the laws", which is also known as the equal protection clause.
• The 15th Amendment (1870) prevents the federal and state governments from infringing upon a citizen's right to vote on the basis of "race, color, or previous condition of servitude".

To review, see What Are Civil Liberties?, Securing Basic Freedoms, and Rights of Suspects.
 

5b. Explain the history and importance of the Bill of Rights

• What is the Bill of Rights? Why did the Founders add them to the Constitution?
• What is a major limitation of the Bill of Rights with regard to individual civil liberties?
• What is incorporation?
• What amendment to the Constitution introduced the concept of incorporation?

The Bill of Rights refers to the first ten amendments to the Constitution. When the Founders debated the merits of the Constitution, the anti-federalists were concerned that the founding document centralized too much power in the hands of the federal government, which would lead to violations of individual and states' rights. Federalists agreed to include the Bill of Rights in the Constitution to convince the anti-federalists and the states to ratify the Constitution. Note that the Bill of Rights only applies to the federal government – it did not prevent state governments from passing laws that would violate the rights it outlines.

The first eight Amendments refer to protecting specific individual freedoms from government infringement. The Ninth Amendment states individuals have additional rights beyond those enumerated in the Bill of Rights. The 10th Amendment refers to issues of state's rights.

Incorporation describes the legal process that made the Bill of Rights applicable to the states. Initially, the Bill of Rights only prevented the federal government, not state governments, from infringing on individual civil liberties. However, the incorporation process extended enforcement of these protections to the state governments.

The equal protection clause of the 14th Amendment established the principle of incorporation to guarantee states would protect the future civil rights of previously-enslaved Americans. The Bill of Rights had restricted the powers of the federal government, but incorporation strengthened the federal government's position concerning the states. The federal government now had the ability and responsibility to enforce the civil rights protections the 13th, 14th, and 15th Amendments clarified. Incorporation meant the federal government could act against state governments that violated these Constitutional rights.

To review, see What Are Civil Liberties?, Rights of the Accused, and Interpreting the Bill of Rights.

5c. Examine the rights protected under the First Amendment and key Supreme Court cases that have defined these First Amendment rights

• What rights are protected in the First Amendment?
• Which court cases have been the most influential in determining the extent of the First Amendment?

The First Amendment states, "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".

In other words, the First Amendment addresses five key freedoms: religion, speech, the press, assembly, and petition. For example, the government cannot financially or rhetorically support one religion to the detriment of another, establish an official state religion, or punish or prevent an individual from practicing their religion. The government cannot regulate or restrict an individual's right to speak freely or the work of a free press. Citizens have the right to assemble in groups, present petitions when they feel the government has caused them harm, and ask the government to address their grievances.

There are several exceptions to the free speech protected by the First Amendment. Individuals or companies have the right to file libel cases against those who publish defamatory information. These cases are difficult to win because the victim must prove the perpetrator published the information with malice and reckless disregard for the truth. Despite this difficulty, most media outlets and publications try to avoid libeling individuals since these cases can be expensive to defend in court and can generate negative publicity. The Supreme Court established this standard in New York Times v. Sullivan.

Several court cases have attempted to define obscenity and determine whether individuals have the right to possess obscene material. Today, we generally accept that while individuals have the right to possess obscene material in their homes, they cannot produce, sell, or ship it (primarily because it can harm others). The Supreme Court reviewed the issue of obscenity in Roth v. United States, Stanley v. Georgia, and Miller v. California.

Since the 1920s, several Supreme Court cases have established that the government can limit "fighting words", or speech that presents a "clear and present danger" and can provoke an immediate act of violence. However, when this interpretation led to the suppression of certain radical political speech, the Court limited the government's power to instances where violence was clearly intended and likely. The Supreme Court reviewed these issues in Schenck v. United States, Dennis v. United States, and Brandenburg v. Ohio.

To review, see Securing Basic Freedoms.

5d. Analyze the "right to privacy", its origins, and Supreme Court rulings on privacy

• Which amendment establishes a right to privacy? How does it define that right?
• How has the right to privacy been interpreted over the years? What are some of the questions that arise from the right to privacy?

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized".

We interpret this Amendment as guaranteeing the right to privacy. For example, law enforcement officials, as government representatives, do not have the right to search individuals or their homes without probable cause and a warrant signed by a judge.

What does this mean? Should individuals have the same right to privacy in their cars as in their homes? What about a student's locker at school? What if the police believe an individual is carrying a weapon and poses an imminent threat to public safety? What about electronic searches, such as government eavesdropping on electronic communications? Are our emails, text messages, and phone calls legally equivalent to the "papers and effects" the amendment mentions?

The courts, legal experts, the police, and citizens continue to grapple with these questions about the limits of the Fourth Amendment. Major Court cases that deal with the Fourth Amendment include Olmstead v. United States, Katz v. United States, and Kyllo v. United States.

The Fourth Amendment also includes the exclusionary rule, which specifies that prosecutors cannot use evidence the police collect during a search that violates the Fourth Amendment in court. The Supreme Court established this rule on a federal basis in Weeks v. United States and at the state level in Mapp v. Ohio.

To review, see The Fourth Amendment.

5e. Discuss the process of expanding civil rights to minorities and women in the United States

• What are de jure segregation and Jim Crow laws? Which Supreme Court case established segregation laws in the South?
• Describe the doctrine of separate but equal. What conditions did this policy support? What Supreme Court case opposed this policy?
• How would you describe the emergence of the Civil Rights movement in the United States?
• Who were some key figures, organizations, and accomplishments of the Civil Rights movement in the United States?
• What other minority groups have used the model civil rights activists followed to implement change? What challenges have these groups faced?
• What are some landmark cases and legislation these minority groups have achieved?
• How would you describe the experience of creating a Disability movement?
• What is affirmative action?
• What are the main arguments for and against affirmative action?

De jure segregation refers to the legal separation of the races. In other words, the legal system keeps the races divided. A system of de jure segregation emerged in the American South after the Civil War during Reconstruction when politicians at the federal and state levels failed to enforce the 13th, 14th, and 15th Amendments to appeal to Southern voters.

After the Civil War, southern state legislators passed a series of Jim Crow laws that required citizens to pay poll taxes, pass literacy and comprehension tests, submit to property ownership requirements, and present certain identification documents, such as birth certificates, to vote. These laws prevented most African Americans and many poor white voters from voting in elections. Remember that slaves were not allowed to attend school or own property and did not receive the identification documents they would have needed to vote. Individuals also risked severe harassment, intimidation, economic reprisals, and physical violence when they tried to register to vote or cast their ballot.

The Supreme Court case Plessy v. Ferguson (1892) established a state's right to make these laws and provide accommodations for each race that were separate but equal. In reality, the railway cars, schools, libraries, churches, parks, playgrounds, restrooms, other public facilities, and government services reserved for black Americans were separate but rarely equal in terms of accessibility and quality. The Supreme Court case Brown v. Board of Education (1954) overturned Plessy v. Ferguson, arguing that separate facilities, accommodations, and services could never be equal.

In the early 1900s, African Americans mobilized to fight this discrimination. For example, the National Association for the Advancement of Colored People (NAACP), founded in 1909, would introduce court cases to push back against segregation and discriminatory laws. Thurgood Marshall championed this strategy as an attorney for the NAACP and frequently argued its cases before the Supreme Court, including Brown v. Board of Education. President Lyndon Johnson appointed Marshall to the Supreme Court in 1967, where he served until 1991.

The Civil Rights movement grew after World War II (1939–1945), when many African Americans fought in the armed forces and worked in the defense industries. When they returned to the United States after serving their country, the injustices they had experienced in their communities became more apparent, and they began to organize more militantly for equal rights. In the early 1950s, they organized boycotts, sit-ins, marches, and other actions to pressure their local, state, and federal governments into promoting and protecting their rights. Martin Luther King Jr., who founded the Southern Christian Leadership Conference in Atlanta in 1957, was a central figure in the civil rights movement, although there were many others.

For example, on Dec. 1, 1955, police officers in Montgomery, Alabama, famously arrested Rosa Parks when she refused to surrender her seat on a city bus to a white passenger as the law required at the time. The incident sparked the Montgomery Bus Boycott, which eventually forced the state to desegregate public transportation. The civil rights activists also organized the Freedom Rides, where they toured the country to protest segregation and help register African Americans to vote.

During the 1960s, civil rights activists won two major political victories: the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The first forbids discrimination based on "race, color, religion, or national origin" in public accommodations and employment. Congress established the Equal Employment Opportunity Commission (EEOC) to protect these rights. The Voting Rights Act outlawed discriminatory voting practices, such as poll taxes and literacy tests. Certain states were required to prove that any future changes to voting practices would not infringe upon the right to vote. The federal government was required to monitor state and local elections to ensure voting rights were respected in certain states.

The civil rights movement has served as a model for other minority groups in the United States who have suffered from discrimination and persecution, such as Asian Americans, disabled Americans, LGBTQ Americans, Native Americans, and women. Many of these groups benefited from the rights and protections the civil rights activists clarified as existing in the Constitution, but discrimination still occurs.

For example, Latinos immigrants fought to require districts to provide voting materials in languages other than English in areas where more than five percent of the electorate are not native English speakers. Asian American activists fought discriminatory laws after more than 120,000 Japanese-Americans were interned during World War II and protested American involvement in the Vietnam War. Native Americans solidified some of their rights when Congress passed the Indian Civil Rights Act of 1968, although concerns related to tribal sovereignty and self-government on reservations remain.

Some of the first activists for women's rights participated in the abolition movement before the Civil War: they were disappointed when Congress did not recognize their right to vote when the war ended. Their protests became more militant until Congress passed and the states ratified the 19th Amendment in 1920, which recognized a woman's Constitutional right to vote.

Although the ratification deadline has passed, activists continue to try to ratify the Equal Rights Amendment, which would mandate equal treatment for men and women. Congress passed the Amendment in 1971–72, but supporters failed to convince a three-fourths majority of states to ratify it. Members of the LGBTQ (lesbian, gay, bisexual, transgender, and queer or questioning) community also continue to struggle for recognition of their civil rights and for protections against discrimination, which should not depend on an individual's sexual orientation or gender identity.

While policies for the disabled previously focused on rehabilitation, since the early 1900s, activists have pushed the government to recognize the rights of disabled American citizens despite their physical disabilities or mental health conditions.

In 1990 Congress passed the Americans with Disabilities Act (ADA) which afforded protections against discrimination for Americans with disabilities and required covered employers and public schools to provide reasonable accommodations to employees and students with disabilities. Supporters argued that individuals with disabilities should be able to participate freely in society, perform their jobs, access educational opportunities, and take advantage of government services, just as any other citizen, regardless of their need to use a wheelchair or other type of assistive device.

Affirmative action refers to government policies that promote members of minority groups who have suffered from past discrimination, such as by providing access to education and employment opportunities.

Affirmative action policies aim to address the effects of ongoing and past social and economic discrimination which stymied minority communities for generations. For example, many African Americans are unable to obtain bank loans to buy houses or grow their businesses. Many continue to experience substandard schools, cannot get good jobs, and are incarcerated at much higher rates than white Americans for committing the same crimes.

On the other hand, some members of the white community oppose affirmative action policies because they argue they support discrimination against themselves when they were not personally responsible for the discrimination that occurred in the past.

To review, see The African American Struggle for Equality, The Fight for Women's Rights, Civil Rights for Indigenous Groups, and Our Fight for Disability Rights and Why We Are Not Done Yet.

Unit 5 Vocabulary

• 19th Amendment
• affirmative action
• Americans with Disabilities Act (ADA)
• Bill of Rights
• Brown v. Board of Education
• civil liberties
• civil rights
• Civil Rights Act of 1964
• de jure segregation
• Equal Employment Opportunity Commission (EEOC)
• equal protection clause
• Equal Rights Amendment
• exclusionary rule
• First Amendment
• Fourth Amendment
• Freedom Rides
• incorporation
• Jim Crow laws
• LGBTQ
• libel
• Martin Luther King Jr.
• National Association for the Advancement of Colored People (NAACP)
• Plessy v. Ferguson
• reasonable accommodations
• Rosa Parks
• separate but equal
• Thurgood Marshall
• Voting Rights Act of 1965