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Civil Liberties and Civil Rights

I. Background
A. Fundamental Right: fundamental law theory
1. Is the law/right explicitly or implicitly guaranteed by the Constitution?
2. Would a civil liberty or justice cease without this right?
3. fundamental – travel, voting
4. non-fundamental – education, housing, welfare

B. Incorporation
1. Gitlow v. New York (1925) – Court stated the First Amendment rights are
fundamental personal rights; 1st time national government acted on freedom of
speech/press from government censure; fundamental rights protected by the
Amendment under the due process clause which applies to state law
2. Why not the rest of the Bill of Rights”?
a. Supreme Court by the 1960s incorporated into the protection under the
14th clause – except 2, 3, 7, 10 and the grand jury in the 5th -- no grand
jury through other procedures (now 19th Amend most important protector
of our fundamental rights)
II. State v. Federal Constitution Rights
A. States guaranteed
1. Republican Govt.
2. Create local govts.
3. Conduct elections
4. Exercise all powers not delegated to national govt. or denied to states by
    B. National
1. Express powers in Constitution
2. Implied powers that are inferred by express powers
3. Inherent powers that allow a nation to present a united front to foreign powers.

     C. Shared
1.    Tax citizens and business
2.    Borrow & spend money
3.    Est. courts
4.    Pass & enforce laws
5.    Protect civil liberties

III. Judicial Activism versus Judicial Restraint
      A. Activism -- judges interpret the Constitution to reflect current conditions
      B. Restraint -- judges interpret to reflect what the framers intended it to mean
IV. Barron v. Baltimore -- U. S. Bill of Rights applies to Federal govt. not the
People thought they could control their own state govt.
V. Palko V. Connecticut (1937) -- permits the state to violate double jeopardy --
not endanger civil liberty or justice.
   A. Local case appealed to State -- Convicted -- Palko asked about protection
"double" as part of the Bill of Rights -- incorporation of 5th?

   B. Court upheld state decision because double jeopardy Not a fundamental
right and
therefore not included in the due process clause -- Justice Cordoza

VI. Fundamental Rights
  A. Right to privacy
  B. Right of association
  C. Right to travel
  D. Proof beyond reasonable doubt.
  E. New Judicial Federalism -- advocates the federal govt. setting a Minimum
to protect civil rights -- states Can exceed those minimums. State Const's can be
additional source of protection for fundamental rights.

VII. First Amendment -- Religion
  A. Establishment Clause -- Constitution forbids a government est. church or
religion --
to prevent influence and interference.
  B. Free Exercise Clause -- person has right to observance/practice any religion
choose w/o legal interference.
      1. Religious exercise or not is fund. Right
      2. Religious actions must stay within laws.
      3. One man's culture could be another man's crime -- Killing chickens or
  C. The Lemon Test -- guide to interpreting the Est. Clause.
      1. Lemon V. Kurtzman (1971) -- 3 part test -- if law fails on part, it fails the
      2. The law must neither advance nor inhibit religion
      3. No excessive govt. entanglement
      4. Must have a secular purpose -- issuing books to parochial
  D. Engle v. Vitali (1961) -- no school prayer or nondenominational prayers.
      1. Requires absolute wall of separation
     2. No silent moments
     3. School is a state PUBLIC govt. agency
     4. Students are impressionable & under peer group pressure -- Congress
  E. Public Displays
     1. Nativity scenes
     2. Menorahs
     3. Santa Claus
     4. Elves & Reindeer


    F. Tax exemption for Churches
       1. Good Works
       2. Hospitals
       3. Charities

VIII. Secondary Schools and Universities
   A. Indirect & direct aid -- Buildings & books v. chapels and bibles
      1. Tax deduction for parents -- books & Tuition -- public schools are free
      2. Books -- non-religious subjects (direct)
      3. Standardized tests -- SAT, ACT, (direct)
      4. Transportation -- busing
      5. Mandated state diagnostic tests can be paid (FCAT)?
      6. PROHIBITS teacher pay & Purchase of equipment

IX. No Compulsion or denial of Belief -- govt. may not require test for religious
affiliation before running for office, neither can public orgs/businesses

X. Jehovah's Witness Cases
    A. Minesville School district v. Gobitus -- (1940) must salute the flag as a
    B. West Va. Board of Ed. v. Barnett -- (1943) No compulsion to salute flag if
your faith focused on right to freedom of expression

XI. Freedom of Speech -- govt. by the people is based upon every person's right
to speak
freely, organize in groups, question govt. and campaign openly against govt.
    A. The rules
      1. Belief -- we may believe as we wish
       2. Actions -- usually restrained
       3. Speech -- b/w belief and action -- not restrained, but not unlimited
       5. Obscenity
       6. Libel
       7. Sedition
       8. Fighting words (incitement)
    B. Dangerous Tendency Doctrine -- leg. Bodies, not courts, have responsibility
deciding when speech should be outlawed. It (Is) constitutional to outlaw speech
that has
a tendency to lead to illegal activity
      1. Gitlow v. New York -- (1925)
      2. Brandenburg v. Ohio -- Advocacy of illegal action with imminence and
        a. Leader of Ohio Klu Klux Klan -- convicted at state level -- failed to prove
"imminent threat" in his racial comments
        b. Supreme Court reversed the decision


 c. Extended free speech even further
  C. Clear & Present Danger Doctrine: Speech is not an absolute right -- must
direct connection to an illegal act to outlaw
    1. Justice Holmes -- "Fire" theatre
    2. Schenck v. U. S. (1919) Holmes est. Clear & Present Danger Doctrine
  D. Preferred Position Theory -- gives speech & expression "preferred" status
and gives
judges the resp. to protect these freedoms especially.

X11.Current Constitutional Tests
  A. Prior restraint -- censorship -- not all unconst. but judges VERY suspicious
    1. School authority & school newspapers
    2. Motion pictures
  B. Vagueness -- Men of Common Intelligence have to guess the law's meaning
  C. Overbeadth -- if law could apply to legal as well as illegal speech and activity
-- too
broad coverage
  D. Least drastic means -- try another solution -- rather than infringe on lst
  E. Centrality of political speech
    1. can't regulate political speech unless it incites immediate violence
    2. speaker must exhort audience to act violently
    3. unpopular ideas are not punishable
  A. Sunshine Laws -- required public agencies to open their records & meetings
to the
public and the press
  B. Freedom of Information Act 1966 -- access to govt. records -- certain
exceptions --
private financial transactions
  C. Executive Privilege -- U.S. v. Nixon S. C. ruled he was not protected from
for material relevant to a criminal investigation
  D. Shield Laws -- protect reporters and scholars from subpoenas
  E. Libel (written slander) N. Y. Times v. Sullivan -- the test for public and private
persons -- S. C. est. guidelines
   1. Public persons inject themselves into the arena
   2. Private persons do Not
   3. Malice aforethought must be proven in cases involving public persons
   4. Malice -- intended to do harm & callous disregard for checking the truth of
statement -- must prove financial lose to get compensation
  5. Private Persons -- no malice has to be proven -- just a false statement
 F. N. Y. Times v. U. S. -- publishing classified documents -- Pentagon Papers
  1. N. Y. Times won -- govt. failed burden of proof
  2. Prior restraint?
  3. Absolute protection of the freedom of speech


   A. Miller v. California -- 1973 -- 3 part Miller Test for obscenity
     1. panders to perverse interest
     2. patently offensive sexual content
     3. taken as a whole, the work has no serious redeeming social or artistic
   B. The state and local govt, has right to use the Miller test to determine if it
has been
passed -- also it seems local govt. can still appeal to the Supremes anything that
is banned
to determine if ban is const.

XIV. Freedom of Assembly
  A. Feiner v. N. Y. -- holds speaker resp. for the actions of the crowd when
unpopular ideas
   B. Edwards v. South Carolina -- can hold the audience resp. for their actions
as result
of unpopular speech

 XV. Traitors, Saboteurs, etc
   A. Treason -- aid & comfort to the enemy
    1. espionage gives secret information (spying)
    2. must have two witnesses or defendant must confess in OPEN COURT of
    3. no death penalty
   B. Conspiracy -- planning to commit illegal acts against U. S. -- tough to

XVI. Equal Protection Clause
  A. No state shall deny any person equal protection under the laws -- 14th
Applicable to federal govt. and states.
  B. Does not apply to private persons or private institutions -- those with
membership -- country clubs, yacht clubs, etc.

XVII. Tests for Constitutionality -- Supremes use 3 tests
    A. Rational Basis Test: the burden of proof for whether a statute violates the
protection clause rests with the one challenging a law -- the plaintiff
    B. Strict Scrutiny -- used when a suspect class or fundamental right is
    C. Heightened Scrutiny -- used when quasi-class involved-gender, elderly,

XVIII. Racial & Sexual Equality
   A. Plessy v. Ferguson 1896 -- Plessy sat in " whites only" section of train in
Louisiana -- convicted of violating state's seg. Law
     1. est. separate but equal
     2. classification by race ok IF EQUAL
     3. doesn't violate equal protection clause because they ARE equal


    B. Brown v. Board of Education of Topeka, Ks (1954)
     1. classification causes inferiority in those separated therefore it violates the
protection clause
     2. desegregate the schools -- didn't until '63
   C. BrownII -- with "all deliberate speed --'63
   D. Miller v. Johnson 1995 -- majority/minority congressional districts forbidden
could violate the rights of whites -- "racial gerrymandering"
   E. Grove City College v. Bell 1984 --
     1. under Title VI of 1964 Civil Rights Act requires equal spending in
universities --
specific department receiving fed funds
     2. Congress retaliated by revision -- if ANY Fed money is used, ALL will be
cut if
ENTIRE institution doesn't spend equal amounts
     3. Includes athletic programs -- scholarships, equipment, facilities
De Jure Segregation -- govt. imposed by law
De Facto Segregation -- arises from social customs or personal choice --
residential seg
"in fact" Ex. Cleveland East and West
   F. Swann v. Charlotte-Mecklenburg Board of Education 1955
     1. Supreme Court affirmed right of lower courts to order busing to achieve
     2. Does NOT require cross-district busing unless both districts are blatantly
segregated intentionally.

XIX. Voting -- states have the authority to set voting qualifications. Congress
has power
to say "Times, Places, and Manner"-- When, Where, How
    A. Smith v. Allwirght 1944 -- outlaws white primaries
      1. response to southern tricks -- KKK
      2. U. S. Amendments that restrict state powers -- 14th 15th -- unreasonable
qualifications and those based upon race -- 19th women -- 26th 18 year olds
    B. Harper v. Va Board of Elections (1966) outlawed poll tax -- S. C. decision
    C. Methods of disenfranchisement
     1. Gerrymandering -- to ensure black minority in all districts
     2. Literacy tests
     3. Eight box laws
     4. Grandfather clause -- before 1867

XX.    Voting Rights Act 1965
  A.    no changes to voting laws w/o Fed district courts giving approval
  B.    Federal observers at polling places if complaint
  C.    no poll taxes
  D.    no literacy tests
  E. no dilution of districts -- may take race into account but cannot be the


XXI. Title VII of 1964 Civil Rights Act
   A. Created equal employment opportunity commission -- EEOC -- takes
and brings cases against employers
     1. 5 members opted by Pres and Senate
     2. works with states to enforce Civil Rights Acts

XXII. Housing -- area of slowest progress
     A. Restrictive Covenants -- provision in a deed to real property restricting its
     B. Shelly v. Kramer -- 1948 -- S C. says judges CANNOT enforce Restr.
     C. Fair Housing Act 1968 -- Now Fair Housing Amendment Act 1988 --
cannot deny
property based upon race, etc.

XXIII. Affirmative Action requires Strictest Scrutiny
     A. Richmond v. Croson -- 1989 -- claims of past racial discrimination must
now be
proven by plaintiff in order to claim suspect category in awarding govt. building
     B. Univ. of Ca. Regents v. Bakke 1978 -- top student of Minn and Stanford
Vietnam Vet -- applied to U. C. Davis and rejected -- those with lower test
GPA'S and interview ratings admitted under "racial program"
*** S. C. ruled UC plan unconst -- reverse discr.
*** Justice Lewis Powell -- dissenting opinion -- Univ. CAN take race into account
achieve diversity

XXIV. Citizenship as a right of property -- citizen may own, rent, invest in, buy
and sell
property ** close relationship in Am b/w cit. and owning property
     A. Jus Soli -- place of birth -- 14th Amendment confers citizenship based on
     B. Jus sanguinis -- by blood -- children born to Am abroad
     C. Aliens -- non-citizens
    D. Legal/illegal aliens/green cards
    E. Naturalization -- legal action gives citizenship to alien residing 5 years,
over 18,
and legally here

XXV. Due Process

     1. places limits on WHAT govt. may do
     2. substantive pertains to content of law
     3. an "unreasonable" law, even if properly passed and applied, can be
     4. means there ARE certain things a govt. should NOT BE ABLE TO DO, no
how it does them


XXVI. Right to Privacy -- 4th & 9th Amend
      A. most important effect of subst. Due process is expansion of privacy rights
right to be free from govt. surveillance & intrusion ** right not to have private
made public by the govt. i. E finances ** right to be free in thought and belief
from govt.
       B. Roe v. Wade (1973) right to privacy in 1st trimester -- in 3rd, the stat
impose restrictions -- fetus viable outside womb
      C. Webster v. Reproductive Health Services -- shift away from abortion
        1. state can exercise some control over first trimester -- i. e. where and
how and by
        2. state can regulate abortion clinics
        3. Missouri law denied use of stat employees or state funded facilities to
abortions unless mother's life in danger

XXVII. Search & Seizure
    A. General search warrants -- looking for "Stuff" unconstitutional
     B. Elements of a proper warrant
       1. probably cause
       2. what are looking for
       3. where will look -- hotel room, home, rented place (car is except)
where can expect reasonable level of privacy.
    C. Wiretaps -- founders had books, letters, not phones
       1. Katz v. U. S. (1967) privacy protects people -- warrants required for
taps into
premises -- one has reasonable expectation of privacy on home line
    D. Mapp v Ohio (1961) exclusionary rule -- unconstitutionally obtained
material is
inadmissible in court

XXVII. 5th Amendment -- Right to SILENCE -- one shall NOT be compelled to
against oneself
     A. Miranda v. Arizona (1966) rights of silence and counsel must be told to
       1. right to remain silent
       2. anything you say can and will be used against you in a court of law
       3. right to an attorney or defender
       4. permitted to terminate interrogation at any time
      B. Does not apply to physical evidence -- speaks for itself -- ex. Rape kits --
saliva, DNA
      C. Evidence abstained contrary to Miranda CAN be used to discredit
testimony -- prevent lying under oath

XXIX. Right to Counsel -- 6th Amend
    A. Powell v. Al (1933) counsel in all capital cases


      1. nine Af. Am youths convicted of assaulting a white girl
      2. S C. reversed decision stating state had to provide counsel in cases
involving the
    B. Betts v. Brady (1942) at state level in special circumstances -- illiteracy --
otherwise no counsel required b/c right to counsel not a fundamental right
essential to a "
fair" trail
    C. Gideon v. Wainright (1963) must provide in all felony cases -- at state
Justice Black stated counsel was needed to guarantee a fair trail

XXX. Trials
    A. Impartial Trail -- neutrality of judge and jury
     1 Convictions in federal courts must be unanimous
    B. Speedy trial -- right
    C. Double jeopardy -- 5th amend -- prevents prosecution by same govt. for
     1. DOES NOT prevent prosecution at state and federal level for same crime
     2. DOES NOT prevent prosecution for same crime by dif states

XXXI. Cruel and Unusual Punishment
     A. Death penalty -- Furman v. Georgia (1972)
      1.S. C. ruled capital punishment unconst. In the way it was admin them
      2. Court asked for clarification of WHEN it could be used
      3. States responded in variety of ways including new procedures for trials
and new
mandates for when judges could apply it.

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