Unit 4: Civil Rights and Liberties Democracy is naturally associated with majority rule – democratic majorities are empowered to make policy while citizens in the minority are expected to respect the outcomes of a fair and open political process. But the framers feared a “tyranny of the majority,” which is why the Constitution does not embrace majoritarianism wholeheartedly. The Bill of Rights is one obstacle to majority rule: it places certain things off limits to democratic resolution, thereby protecting the interests of minorities. Although the Bill of Rights protects the civil rights and liberties of all Americans, a political majority will not usually enact legislation that oppresses or marginalizes itself. Therefore, the Bill of Rights is especially valuable to potentially vulnerable minority groups (political, racial, religious, etc.). 1. Defining Civil Rights and Civil Liberties What is the distinction between civil rights and civil liberties? Civil rights emanate from the concept of equality. More specifically, civil rights refer to the government’s obligation to treat citizens equally and to protect them from arbitrary discrimination. Examples of civil rights include the right to vote and the right to equal access to public education and social services. These rights cannot be denied for any arbitrary reason such as race, gender, or religion (although they may be denied for non-arbitrary reasons, e.g. a twenty year old may be denied an education by a pubic high school or a prison inmate may lose the right to vote). Civil liberties are individual rights and freedoms that cannot be denied by the government; they protect the individual from improper government action. Civil liberties include free expression, religious freedom, and the right to a fair trial. In addition to the Constitution, civil rights and liberties are protected by state and federal law – most famously, by the 1964 Civil Rights Act. 2. The Supreme Court and Civil Liberties The freedoms protected by the Bill of Rights are not absolute – there are almost always some narrow exceptions (e.g. some restrictions on press freedom are permissible, such as laws prohibiting libel and child pornography). Nevertheless, over the past several decades the Supreme Court has strengthened and expanded the scope of protection for civil liberties. Religious Liberty. The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus, there are two distinct protections for religious freedom. The Establishment Clause prevents the government from establishing an official state religion. The Supreme Court has ruled that this Clause also prevents government from favoring or endorsing one religion over others, or religion over secular or non-religious belief. On these grounds, the Court has consistently struck down government-sponsored prayer in public schools. The Free Exercise Clause permits individuals to practice their faiths as they see fit, free from government interference. Freedom of Speech and Press. The First Amendment also prohibits Congress from “abridging” the freedom of speech and freedom of the press. Freedom of expression is perhaps the most fundamental and important liberty because it is essential to the operation of the democratic political process. Activities such as organizing interest groups, demanding action from

government officials, and conducting election campaigns would be severely hindered if citizens could not speak and publish freely. Since the 1960s, the Supreme Court has established very strong constitutional protections for free expression. Only a few narrow categories of expression – including libel and slander, threats, incitement to violence, and child pornography – are unprotected by the First Amendment. The “bedrock principle” of the First Amendment is that the government cannot suppress speech simply because a majority finds it offensive or disagreeable. Thus, members of groups most Americans despise, such as the Ku Klux Klan, enjoy the same First Amendment rights as members of civic organizations, churches, political parties, and other “respectable” organizations. Criminal Procedure. The Bill of Rights contains numerous provisions relating to criminal procedure. Most generally, the Constitution requires the government to provide “due process,” or fair legal procedures, before it deprives any person of life, liberty, and property. Several major due process guarantees are found in the Bill of Rights. The government cannot conduct unreasonable searches and seizures (Fourth Amendment), or compel testimony at trial (Fifth Amendment), and it must provide defendants with a public trial before a jury (Sixth Amendment). Other due process guarantees have been established by federal courts, even though they are not explicitly mentioned in the Constitution (e.g. in criminal trials guilt must be proved “beyond a reasonable doubt”). All of these provisions make it more difficult for the government to apprehend and punish criminals. Why are they part of the Constitution? Not to protect lawbreakers, but to help ensure that the criminal justice system treats citizens fairly and that police and prosecutors do not abuse their considerable power. Recall that the framers perceived that the British government had used criminal statutes in an unjust and arbitrary manner against the colonies. In the 1960s, under the leadership of Chief Justice Earl Warren, the Court expanded the rights of criminal defendants and created new rules of criminal procedure. Three of the most important decisions were Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966). In Mapp, the Court ruled that states must follow the exclusionary rule, which prohibits illegally obtained evidence from being used at trial. The exclusionary rule is intended to deter police from violating the law. Gideon required states to provide attorneys to indigent criminal defendants, reasoning that legal representation is essential to a fair trial. Finally, the famous Miranda warning was designed to protect against coercive police interrogations, such as when suspects were questioned for hours while being held incommunicado. Suspects must be informed of their rights prior to custodial interrogation; i.e. before they are questioned while in the custody of police. The standard warning informs suspects that they have a right to remain silent, that anything they say may be used against them in court, that they have a right to a lawyer, and that if they cannot afford a lawyer, a lawyer will be provided to them without charge. Privacy. In a 1965 case, the Court struck down a state law that prohibited the use of birth control on the grounds that it infringed on a right to privacy. Although the word “privacy” is not mentioned in the Constitution, the Court reasoned that various provisions of the Bill of Rights, taken together, create “zones of privacy” which protect the right of married couples to decide whether to use contraception. In Roe v. Wade (1973), the Court held that the right of privacy is broad enough to protect a woman’s right to have an abortion before the fetus is viable, i.e. capable of surviving outside the womb. After viability, states can still prohibit abortion unless

the woman’s health is at risk. Finally, in 2003 the Court invalidated a Texas law that prohibited “homosexual sodomy,” ruling that states cannot criminalize sexual relations between consenting adults in the privacy of their own homes. 3. Nationalizing the Bill of Rights The first five words of the Bill of Rights are “Congress shall make no law…”. For much of American history, the protections of the Bill of Rights applied only to the federal government, but not the states. This changed beginning in the 1890s. The Court began to interpret the Fourteenth Amendment’s due process clause – directed at state governments – as a guarantee of “fundamental” rights and liberties. Over a period of several decades, on a case-by-case basis, the Court ruled that various provisions of the Bill of Rights are “fundamental” and therefore apply to the states through the Fourteenth Amendment. Today, almost all provisions of the Bill of Rights are binding on state governments as well as the federal government. This process is known as the “incorporation” or nationalization of the Bill of Rights. 4. Civil Rights Ratified in 1868, the Equal Protection Clause of the Fourteenth Amendment provides the first explicit reference to equality in the Constitution: “No state shall make or enforce any law … which shall deny to any person the equal protection of the law.” In Plessy v. Ferguson (1896), the Supreme Court ruled that laws segregating citizens on the basis of race did not violate the Equal Protection Clause. This decision formed the legal foundation of the so-called “separate but equal” doctrine, which sanctioned segregation in schools, hospitals, restaurants, and other places of public accommodation. Former slave-holding states ensured the viability of segregation by disenfranchising African Americans and thereby depriving them of any meaningful political influence. The web of laws and practices aimed at segregating and subordinating African Americans was known as Jim Crow, named after a character in a minstrel show. In addition to state law, the Jim Crow system was enforced through intimidation and violence against those who challenged its norms of racial supremacy. The demise of Jim Crow began in the 1940s and 1950s. The National Association for the Advancement of Colored Persons (NAACP) sought to undermine the legal foundations of state-sanctioned segregation and won a handful of important victories at the Supreme Court. In 1944, the Court ruled that state courts could not enforce “restrictive covenants,” which prohibited the sale of homes to blacks, Jews, and other minorities. Most famously, in Brown v. Board of Education (1954) a unanimous Supreme Court held that school segregation violated the Equal Protective Clause. The Court reasoned that “separate but equal” was inherently unequal because of its negative psychological and emotion effects on black children. Although most public schools in the South remained segregated until the federal government intervened in the 1960s, Brown signaled that Jim Crow’s days were numbered. A year after the Brown decision – which did not extend beyond public education – Rosa Parks refused to give up her seat to a white passenger and move to the back of the bus, as Alabama law required. Her arrest sparked the Montgomery bus boycott and marked a new phase of the civil rights movement: less emphasis on legal action through the courts and greater emphasis on

protests and civil disobedience. At the forefront of this movement were the NAACP, the Southern Christian Leadership Conference (SCLC) led by Martin Luther King, Jr., and the Student Nonviolent Coordinating Committee (SNCC). The various activities of these groups – marches, sit-ins, boycotts, and voter registration drives – eventually pressured President John Kennedy to announce support for a Civil Rights Act. After Kennedy’s assassination, President Lyndon Johnson signed the Civil Rights Act of 1964, which included prohibitions on racial discrimination in employment and public accommodations. After Congress enacted the Voting Rights Act of 1965, which banned discriminatory voting practices, the era of legal racial discrimination had come to an end. There can be no question that legal protections for civil rights have grown stronger since the 1960s. Congress has enacted legislation prohibiting discrimination against women and the disabled, and in 2010 lifted the ban on gays from serving in the military. Most recently, in Obergefell v. Hodges (2015) the Supreme Court ruled in favor of marriage equality, holding that states cannot exclude same-sex couples from the institution of marriage. Yet controversies over civil rights continue. One involves state laws requiring photo identification to vote. Proponents argue such laws are a reasonable means to prevent voter fraud; critics counter that voter fraud is rare and that the real goal is to reduce voter turnout among low-income voters who are less likely to have a driver’s license or other forms of photo identification.