Edited by Matthew A. McIntosh / 02.25.2018
1 – Civil Liberties and the Bill of Rights
1.1 – The Bill of Rights
1.1.1 – Overview
The Bill of Rights of the United States of American: The United States Bill of Rights, which are the first 10 amendments to the US Constitution, and the core of American civil liberties.
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings, and reserve some powers to the states and the public. While the amendments originally applied only to the federal government, most of their provisions have since been held to apply to the states by way of the Fourteenth Amendment.
1.1.2 – History of the Bill of Rights
The Constitution may never have been ratified if a bill of rights had not been added. Most state constitutions adopted during the Revolution had included a clear declaration of the rights of all people, and most Americans believed that no constitution could be considered complete without such a declaration.
Signing the Constitution: This painting depicts the signing of the US Constitution. Without the addition of the Bill of Rights, it is unlikely that the Constitution would have been ratified.
The amendments that would become the Bill of Rights were introduced by James Madison as a series of legislative articles. They were adopted by the House of Representatives on August 21, 1789, and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States.
Portrait of James Madison: James Madison, “Father of the Constitution” and first author of the Bill of Rights
Congress passed twelve amendments, yet only ten were originally passed by the states. One of the two rejected amendments dealt with the size of the House of Representatives, and the other rejected amendment provided that Congress could not change the salaries of its members until after an election of representatives had been held (it was ratified 202 years later, becoming the 27th Amendment).
1.1.3 – Original Exclusions from the Bill of Rights
The Bill of Rights implicitly and legally only protected white land-owning men, excluding American Indians, people considered to be “black” (now described as African Americans), and women. These exclusions were not explicit in the Bill of Right’s text, but were well understood and applied. Gradually, these exclusions were lifted by subsequent interpretations or amendments, so in contemporary times, the Bill of Rights protects all classes of people.
1.1.4 – Protected Rights
- The First Amendment protects freedom of religion, speech, press, assembly and petition.
- The Second Amendment protects the right of Americans to bear arms.
- The Third Amendment prevents the government from quartering (housing) soldiers in civilian’s homes during peace time without the consent of the civilian.
- The Fourth Amendment provides protection from unreasonable search and seizure.
- The Fifth Amendment establishes rights related to due process, double jeopardy, self-incrimination, and eminent domain.
- The Sixth Amendment sets out rights of the accused of a crime: a trial by jury, a speedy trial, a public trial, the right to face the accusers, and the right to counsel.
- The Seventh Amendment protects the right to a trial by jury for civil trials.
- The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.
- The Ninth Amendment protects rights not specifically enumerated in the Constitution. Some people feared that the listing of some rights in the Bill of Rights would be interpreted to mean that other rights not listed were not protected. This amendment was adopted to prevent such a misinterpretation.
- The Tenth Amendment confirms that the states or the people retain all powers not given to the national government. This amendment was adopted to reassure people that the national government would not swallow up the states.
1.2 – Nationalizing the Bill of Rights
The Bill of Rights were included into state laws through selective incorporation, rather than through full incorporation or nationalization.
1.2.1 – Incorporating the Bill of Rights
14th Amendment of the United States Constitution: The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.
The incorporation of the Bill of Rights (also called the incorporation doctrine ) is the process by which American courts have applied portions of the United States’ Bill of Rights to the states. According to the doctrine of incorporation, the Due Process Clause of the Fourteenth Amendment applies the Bill of Rights to the states.
Prior to the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, the Supreme Court held in Barron v. Baltimore (1833) that the Bill of Rights applied only to the federal government, not to any state governments. However, beginning in the 1920s, a series of United States Supreme Court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the state governments.
1.2.2 – Nationalization versus Selective Incorporation
After the Fourteenth Amendment was passed, the Supreme Court debated how to incorporate the Bill of Rights into state legislation. Some argued that the Bill of Rights should be fully incorporated. This is referred to as “total” incorporation, or the “nationalization” of the Bill of Rights. On the other hand, some believed that incorporation should be selective, in that only the rights deemed fundamental (like the rights protected under the First Amendment) should be applied to the states, and it should be a gradual process. The Supreme Court eventually pursued selective incorporation.
1.2.3 – Hugo Black: A Champion for Nationalization
Justice Hugo Black: Supreme Court Justice Hugo Black is noted for the complete nationalization of the Bill of Rights.
Even though the Supreme Court decided on selective incorporation, there were some who advocated for a total incorporation or nationalization of the Bill of Rights. Justice Hugo Black championed this view. Black called for the nationalization of the first eight amendments of the Bill of Rights (Amendments 9 and 10 being patently connected to the powers of the federal government alone), and his most famous expression of this belief is found in his dissenting opinion in the Supreme Court case, Adamson v. California (1947).
1.3 – Incorporation Doctrine
1.3.1 – Overview
As described, the incorporation of the Bill of Rights is the process by which American courts have applied portions of the U.S. Bill of Rights to the states, by virtue of the due process clause of the Fourteenth Amendment of the Constitution.
1.3.2 – The Fourteenth Amendment and Moving Toward Incorporation
In Barron v. Baltimore (1833), the Supreme Court declared that the Bill of Rights applied to the federal government, and not to the states. Some argue that the intention of the creator of the Fourteenth Amendment was to overturn this precedent.
The Fourteenth Amendment to the Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
14th Amendment of the United States Constitution: The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.
The first instance of incorporation include the case Chicago, Burlington and Quincy Railroad v. City of Chicago (1897), in which the Supreme Court required just compensation for property appropriated by state or local authorities (so this was an application of the Fifth Amendment in the Bill of Rights). More commonly, it is argued that incorporation began in the case Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.
1.3.3 – Selective Incorporation
In Adamson v. California (1947), Supreme Court Justice Hugo Black argued in his dissent that the Supreme Court should pursue nationalization of the Bill of Rights. Despite his opinion, in the following twenty-five years, the Supreme Court employed a doctrine of selective incorporation that succeeded in extending to the States almost of all of the protections in the Bill of Rights, as well as other, unenumerated rights. The Fourteenth Amendment has vastly expanded civil rights protections and is cited in more litigation than any other amendment to the U.S. Constitution.
1.3.4 – Which Amendments have been Incorporated?
By the latter half of the 20th century, nearly all of the rights in the Bill of Rights had been applied to the states, under the incorporation doctrine.
All of the provisions of Amendment I and Amendment II have been incorporated against the state, while the Third Amendment has not yet been incorporated (the Third Amendment refers to the prohibition on quartering of soldiers in civilian homes).
Amendment IV, unreasonable search and seizure, has been incorporated against the states by the Supreme Court’s decision in Wolf v. Colorado (1949). The exclusion of unlawfully seized evidence has been incorporated against the states in Mapp v. Ohio (1961).
Amendment V, the right to indictment by a grand jury, has been held not to be incorporated against the states, but protection against double jeopardy and protection against self-incrimination have been incorporated against the states in Malloy v. Hogan (1964).
Incorporating Amendment V: Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.
Amendment VI, the rights to a speedy, public, and impartial trial have been incorporated against the states, as has the right to counsel in Gideon v. Wainwright (1963).
Incorporating Amendment VI: Amendment VI, the right to a trial by a jury and the right to counsel, was incorporated against the states in the case Gideon v. Wainwright (1963). Here, this right is exercised as an attorney asks questions during jury selection.
Amendment VII, right to a jury trial in civil cases, has been held not to be applicable to the states.
Amendment VIII, the right to jury trial in civil cases has been held not to be incorporated against the states, but protection against “cruel and unusual punishments” has been incorporated against the states.
Amendments IX and X have not been incorporated against the states, as they apply expressly to the federal government alone.
2 – The First Amendment: Freedom of Religion, Expression, Press, and Assembly
2.1 – Introduction
2.1.1 – Overview
The First Amendment (Amendment I) to the United States Constitution is part of the Bill of Rights and protects American civil liberties. The amendment prohibits the making of any law pertaining to an establishment of a federal or state religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble, or prohibiting the petitioning for a governmental redress of grievances.
Vietnam War Protest in Washington D.C., April, 1971: The First Amendment established the right to assemble as a core American liberty, as is depicted here in a Vietnam-era assembly.
The text of the First Amendment reads, ” 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. ”
Anti-war protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly. Before the twentieth century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished after speaking or publishing.
Freedom of the Press Worldwide: The First Amendment to the Constitution guarantees Americans the right to a free press. This is something that many other countries do not enjoy, as this map illustrates. (click image to enlarge)
In the 1919 case Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft. The clear and present danger test was established by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I. Following Schenck v. United States, “clear and present danger” became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen’s First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a “clear and present danger.
2.1.2 – Incorporating the First Amendment
14th Amendment of the United States Constitution: The Fourteenth Amendment, depicted here, allowed for the incorporation of the First Amendment against the states.
Originally, the First Amendment applied only to laws enacted by the Congress. However, starting with Gitlow v. New York (1925), the Supreme Court has applied the First Amendment to each state. This was done through the Due Process Clause of the Fourteenth Amendment. The Court has also recognized a series of exceptions to provisions protecting the freedom of speech.
2.1.3 – Background to the First Amendment
Opposition to the ratification of the Constitution was partly based on the Constitution’s lack of adequate guarantees for civil liberties. To provide such guarantees, the First Amendment, along with the rest of the Bill of Rights, was submitted to the states for ratification on September 25, 1789, and adopted on December 15, 1791.
2.1.4 – Comparing the First Amendment to Other Rights Protection Instruments
Some provisions of the United States Bill of Rights have their roots in similar documents from England, France, and the Philippines. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, the First Amendment guarantees freedom of speech to the general populace but the English Bill of Rights protected only free speech in Parliament. A French revolutionary document, the French Declaration of the Rights of Man and of the Citizen, passed just weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to those in the First Amendment. Parts of the Constitution of the Philippines, written in 1987, contain identical wording to the First Amendment regarding speech and religion. Echoing Jefferson’s famous phrase, all three constitutions, in the section on Principles, contain the sentence, “The separation of Church and State shall be inviolable”.
English Bill of Rights: The US Bill of Rights drew many of its First Amendment provisions from other countries’ bill of rights, such as the English Bill of Rights. However, the US Bill of Rights established more liberties than the English Bill of Rights.
Although the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights occasionally do. For example, The European Convention on Human Rights permits restrictions “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” Similarly, the Constitution of India allows “reasonable” restrictions upon free speech to serve “public order, security of State, decency or morality. ”
Lastly, the First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights nor the French Declaration of the Rights of Man and of the Citizen contain a similar guarantee.
2.2 – Freedom of Religion
2.2.1 – Introduction
Monument to the Right to Worship: This monument in Washington, DC honors the right to worship. The inscription reads, “Our liberty of worship is not a concession nor a privilege, but an inherent right. “
In the United States, freedom of religion is a constitutionally guaranteed right, laid out in the Bill of Rights. The following religious civil liberties are guaranteed by the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ” Thus, freedom of religion in the U.S. has two parts: the prohibition on the establishment of a state religion, and the right of all citizens to practice their religion.
2.2.2 – No U.S. State Religion
No State Religion: The Establishment Clause of the First Amendment prohibits the creation of a state religion in the U.S. Other countries have had state religions; for instance, the Church of England once dominated religious and political life (former Anglican church depicted here).
Many countries have made one religion into the established (official) church, and support it with government funds. In what is called the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”), Congress is forbidden from setting up, or in any way providing for, an established church. It has been interpreted to forbid government endorsement of, or aid to, religious doctrines. The Federal Government may not establish a national church or religion or excessively involve itself in religion, particularly to the benefit of one religion over another.
2.2.3 – Freedom to Practice Religion
In addition to the rights afforded under the Establishment Clause, the Free Exercise Clause of the First Amendment protects the rights of citizens to practice their religions. This clause states that Congress cannot “prohibit the free exercise” of religious practices.
2.2.4 – Incorporation of the First Amendment
The Supreme Court has interpreted the 14th Amendment as applying the First Amendment’s provisions on the freedom of religion to states as well as to the Federal Government. Therefore, states must guarantee freedom of religion in the same way the Federal Government must. Many states have freedom of religion established in their constitution, though the exact legal consequences of this right vary for historical and cultural reasons.
Most states interpret “freedom of religion” as including the freedom of long-established religious communities to remain intact and not be destroyed. By extension, democracies interpret “freedom of religion” as the right of each individual to freely choose to convert from one religion to another, mix religions, or abandon religion altogether.
2.3 – The Establishment Clause: Separation of Church and State
As part of the First Amendment’s religious freedom guarantees, the Establishment Clause requires a separation of church and state.
2.3.1 – Overview
The Establishment Clause in the First Amendment to the Constitution states, ” Congress shall make no law respecting an establishment of religion. ” Together with the Free Exercise Clause (“… or prohibiting the free exercise thereof”), these two clauses make up what are called the “religion clauses” of the First Amendment.
The Establishment Clause has generally been interpreted to prohibit (1) the establishment of a national religion by Congress, or (2) the preference by the U.S. government of one religion over another. The first approach is called the “separation” or “no aid” interpretation, while the second approach is called the “non-preferential” or “accommodation” interpretation. The accommodation interpretation prohibits Congress from preferring one religion over another, but does not prohibit the government’s entry into religious domain to make accommodations in order to achieve the purposes of the Free Exercise Clause.
2.3.2 – The “Wall of Separation”
Thomas Jefferson: Founding Father and Third President of the United States. Thomas Jefferson’s phrase “the wall of separation,” is often quoted in debates on the Establishment Clause and the separation of church and state.
Thomas Jefferson wrote that the First Amendment erected a “wall of separation between church and state”, likely borrowing the language from Roger Williams, founder of the Colony of Rhode Island. James Madison, often regarded as the “Father of the Bill of Rights”, also often wrote of the “perfect separation”, “line of separation”, and “total separation of the church from the state. ”
2.3.3 – Incorporation of the Establishment Clause
Incorporation of the Establishment Clause in 1947 has been tricky and subject to much more critique than incorporation of the Free Exercise Clause. The controversy surrounding Establishment Clause incorporation primarily stems from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding.
Critics have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause, unlike the Free Exercise Clause (which critics readily concede protects individual rights), does not purport to protect individual rights.
2.3.4 – Controversy Over the Establishment Clause
Controversy rages in the United States between those who wish to restrict government involvement with religious institutions and remove religious references from government institutions and property, and those who wish to loosen such prohibitions. Advocates for stronger separation of church and state emphasize the plurality of faiths and non-faiths in the country, and what they see as broad guarantees of the federal Constitution. Their opponents emphasize what they see as the largely Christian heritage and history of the nation (often citing the references to “Nature’s God” and the “Creator” of men in the Declaration of Independence).
2.3.5 – Main Questions of the Establishment Clause
One main question of the Establishment Clause is: does government financial assistance to religious groups violate the Establishment Clause? The Supreme Court first considered this issue in Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible.
Pledge of Allegiance: In 2002, controversy centered on a California court case that struck down a law providing for the recitation of the Pledge of Allegiance (which includes the phrase “under God”) in classrooms. Congress and the Supreme Court eventually overturned the ruling, demonstrating the controversy that exists in the interpretations of the Establishment Clause.
Another main question is: should state-sanctioned prayer or religion in public schools be allowed? The Supreme Court has consistently held fast to the rule of strict separation of church and state in this issue. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly or indirectly impose student-led prayer during high school football games.
Religious Displays: In 2001, the Chief Justice of Alabama installed a monument to the Ten Commandments in the state judicial building (pictured here). In 2003, a court case determined that this was not allowed under the Establishment Clause.
Lastly, are religious displays in public places allowed under the Establishment Clause? The inclusion of religious symbols in public holiday displays came before the Supreme Court in Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU(1989). In the former case, the Court upheld a public display, ruling that any benefit to religion was “indirect, remote, and incidental. ” In Allegheny County, however, the Court struck down a display that had more overt religious themes.
2.3.6 – The Lemon Test
The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish a religion, while affirming peoples’ individual freedom to practice their religions. The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three part test for laws dealing with religious establishment. This determined that a law related to religious practices was constitutional if it:
- Had a secular purpose;
- Neither advanced nor inhibited religion; and,
- Did not foster an excessive government entanglement with religion.
2.4 – The Free Exercise Clause: Freedom of Religion
The Free Exercise Clause of the First Amendment establishes the right of all Americans to freely practice their religions.
2.4.1 – Introduction
Church and Political Socialization: Participation in organized religion or church attendance can be another important source of political socialization, as churches often teach certain political values.
The Free Exercise Clause is the accompanying clause with the Establishment Clause of the First Amendment to the United States Constitution. The Establishment Clause and the Free Exercise Clause together read:” Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Thus, the Establishment Clause prevents the US from establishing or advocating for a specific religion, while the Free Exercise clause is intended to ensure the rights of Americans to practice their religions without state intervention. The Supreme Court has consistently held, however, that the right to free exercise of religion is not absolute, and that it is acceptable for the government to limit free exercise in some cases.
2.4.2 – Interpreting the Free Exercise Clause
Peyote Cactus: Native Americans used peyote (a cactus that has psychedelic effects when ingested) in spiritual rituals. In 1990, the Supreme Court banned the use of this drug, demonstrating a move away from the requirement to show “compelling interest” before limiting religious freedom.
The history of the Supreme Court’s interpretation of the Free Exercise Clause follows a broad arc, beginning with approximately 100 years of little attention. Then it took on a relatively narrow view of the governmental restrictions required under the clause. The 1960s saw it grow into a much broader view and later receding again.
In 1878, the Supreme Court was first called to interpret the extent of the Free Exercise Clause in Reynolds v. United States, as related to the prosecution of polygamy under federal law. The Supreme Court upheld Reynolds’ conviction for bigamy, deciding that to do otherwise would provide constitutional protection for a gamut of religious beliefs, including those as extreme as human sacrifice. This case, which also revived Thomas Jefferson ‘s statement regarding the “wall of separation” between church and state, introduced the position that although religious exercise is generally protected under the First Amendment, this does not prevent the government from passing neutral laws that incidentally impact certain religious practices.
This interpretation of the Free Exercise Clause continued into the 1960s. With the ascendancy of the Warren Court under Chief Justice Earl Warren, a new standard of “strict scrutiny” in various areas of civil rights law was applied. The Court established many requirements that had to be met for any restrictions of religious freedom. For example, in Sherbert v. Verner (1963), the Supreme Court required states to meet the “strict scrutiny” standard when refusing to accommodate religiously motivated conduct. This meant that a government needed to have a “compelling interest” regarding such a refusal. The case involved Adele Sherbert, who was denied unemployment benefits by South Carolina because she refused to work on Saturdays, something forbidden by her Seventh-day Adventist faith.
This view of the Free Exercise Clause would begin to narrow again in the 1980s, culminating in the 1990 case of Employment Division v. Smith. Examining a state prohibition on the use of peyote, the Supreme Court upheld the law despite the drug’s use as part of a religious ritual. In 1993, the Congress passed the Religious Freedom Restoration Act (RFRA), which sought to restore the compelling interest requirement applied in Sherbert v. Yoder. In another case in 1997, the Court struck down the provisions of the Act on the grounds that, while the Congress could enforce the Supreme Court’s interpretation of a constitutional right, the Congress could not impose its own interpretation on states and localities.
2.4.3 – Jehovah’s Witnesses Cases
Jehovah’s Witnesses: The specific beliefs and practices (such as a belief in door-to-door proselytizing, depicted here) of the Jehovah’s Witnesses has meant that Jehovah’s Witnesses’ litigation has played a key role in defining the Free Exercise Clause of the First Amendment.
During the twentieth century, many major cases involving the Free Exercise Clause were related to Jehovah’s Witnesses. Many communities directed laws against the Witnesses and their preaching work. From 1938 to 1955, the organization was involved in over forty cases before the Supreme Court, winning a majority of them. For example, the first important victory came in 1938 with Lovell v. City of Griffin. The Supreme Court held that cities could not require permits for the distribution of pamphlets.
2.5 – Freedom of Speech
The freedom of speech is a protected right under the First Amendment, and while many categories of speech are protected, there are limits.
2.5.1 – Introduction
Protesting for Freedom of Speech: This individual is protesting for the right to speak freely. Freedom of speech is a closely guarded liberty in American society
Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions as well.
The freedom of speech is not absolute. The Supreme Court of the United States has recognized several categories of speech that are excluded, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.
Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted. There are exceptions to these general protections. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance.The freedom of speech is not absolute. The Supreme Court of the United States has recognized several categories of speech that are excluded, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.
Despite the exceptions, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.
2.5.2 – Incorporation of Freedom of Speech
Although the text of the Amendment prohibits only the United States Congress from enacting laws that abridge the freedom of speech, the Supreme Court used the incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from enacting such laws.
2.5.3 – Protected Speech
The following types of speech are protected:
- Core political speech. Political speech is the most highly guarded form of speech because of its purely expressive nature and importance to a functional republic. Restrictions placed upon core political speech must weather strict scrutiny analysis or they will be struck down.
- Commercial speech. Not wholly outside the protection of the First Amendment is speech motivated by profit, or commercial speech. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state.
- Expressive speech. The Supreme Court has recently taken the view that freedom of expression by non-speech means is also protected under the First Amendment. In 1968 (United States v. O’Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech.
2.5.4 – Types of Free Speech Restrictions
The Supreme Court has recognized several different types of laws that restrict speech, and subjects each type of law to a different level of scrutiny.
- Content-based restrictions. Restrictions that require examining the content of speech to be applied must pass strict scrutiny. Restrictions that apply to certain viewpoints but not others face the highest level of scrutiny, and are usually overturned, unless they fall into one of the court’s special exceptions.
- Time, place, or manner restrictions. Time, place, or manner restrictions must withstand intermediate scrutiny. Note that any regulations that would force speakers to change how or what they say do not fall into this category (so the government cannot restrict one medium even if it leaves open another).
- Prior restraint. If the government tries to restrain speech before it is spoken, as opposed to punishing it afterwards, it must: clearly define what’s illegal, cover the minimum speech necessary, make a quick decision, be backed up by a court, bear the burden of suing and proving the speech is illegal, and show that allowing the speech would “surely result in direct, immediate and irreparable damage to our Nation and its people. “
2.5.5 – Exceptions to Free Speech
Free Speech Zones: The government may set up time, place, or manner restrictions to free speech. This image is a picture of the free speech zone of the 2004 Democratic National Convention.
Certain exceptions to free speech exist, usually when it can be justified that restricting free speech is necessary to protect others from harm. These restrictions are controversial, and have often been litigated at all levels of the United States judiciary. These restrictions can include include the incitement to crime (such as falsely yelling “Fire! ” in a crowded movie theater); fighting words (which are words that are likely to induce the listener to get in a fight); true threats; obscenity; child pornography; defamation; invasion of privacy; intentional infliction of emotional distress; or certain kinds of commercial, government, or student speech. Speech related to national security, military secrets, inventions, nuclear secrets or weapons may also be restricted.
The flag of the United States is sometimes symbolically burned, often in protest of the policies of the American government, both within the country and abroad. The United States Supreme Court in Texas v. Johnson, 491 U.S. 397 (1989), and reaffirmed in U.S. v. Eichman, 496 U.S. 310 (1990), has ruled that due to the First Amendment to the United States Constitution, it is unconstitutional for a government (whether federal, state, or municipality) to prohibit the desecration of a flag, due to its status as “symbolic speech. ” However, content-neutral restrictions may still be imposed to regulate the time, place, and manner of such expression.
2.6 – Freedom of the Press
The First Amendment guarantees the freedom of the press, which includes print media as well as any other source of information or opinion.
2.6.1 – Introduction
Freedom of the Press Worldwide: The First Amendment to the Constitution guarantees Americans the right to a free press. This is something that many other countries do not enjoy, as this map illustrates.
Freedom of the Press: Freedom of the press is a primary civil liberty guaranteed in the First Amendment.
Freedom of the press in the United States is protected by the First Amendment to the United States Constitution. This clause is generally understood to prohibit the government from interfering with the printing and distribution of information or opinions. However, freedom of the press, like freedom of speech, is subject to some restrictions such as defamation law and copyright law.
Blogs and Free Press: Not just print media is protected under the freedom of the press; rather, all types of media, such as blogs, are protected.
In Lovell v. City of Griffin, Chief Justice Hughes defined the press as, “every sort of publication which affords a vehicle of information and opinion. ” This includes everything from newspapers to blogs. The individuals, businesses, and organizations that own a means of publication are able to publish information and opinions without government interference. They cannot be compelled by the government to publish information and opinions that they disagree with. For example, the owner of a printing press cannot be required to print advertisements for a political opponent, even if the printer normally accepts commercial printing jobs.
2.6.2 – Incorporation of Freedom of the Press
In 1931, the U.S. Supreme Court decision in Near v. Minnesota used the 14th Amendment to apply the freedom of the press to the states.
2.6.3 – Violations of Freedom of the Press in U.S. History
In 1798, not long after the adoption of the Constitution, the governing Federalist Party attempted to stifle criticism with the Alien and Sedition Acts. These restrictions on freedom of the press proved very unpopular in the end and worked against the Federalists, leading to the party’s eventual demise and a reversal of the Acts.
In 1861, four newspapers in New York City were all given a presentment by a Grand Jury of the United States Circuit Court for “frequently encouraging the rebels by expressions of sympathy and agreement. ” This started a series of federal prosecutions of newspapers throughout the northern United States during the Civil War which printed expressions of sympathy for southern causes or criticisms of the Lincoln Administration.
The Espionage Act of 1917 and the Sedition Act of 1918 imposed restrictions on free press during wartime. In Schenck v. United States(1919), the Supreme Court upheld the laws and set the “clear and present danger” standard. In other words, the Supreme Court argued that a “clear and present danger,” like wartime, justified specific free press restrictions. Congress repealed both laws in 1921. Brandenburg v. Ohio (1969) revised the “clear and present danger” test to the “imminent lawless action” test, which is less restrictive.
2.6.4 – Regulating Press and Media Content
The courts have rarely treated content-based regulation of journalism with any sympathy. In Miami Herald Publishing Co. v. Tornillo(1974), the court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure journalistic responsibility. The Supreme Court found that freedom, but not responsibility, is mandated by the First Amendment. So, it ruled that the government may not force newspapers to publish that which they do not desire to publish.
However, content-based regulation of television and radio has been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. However, the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis. In Federal Communications Commission v. Pacifica Foundation (1978), the Supreme Court upheld the Federal Communications Commission’s authority to restrict the use of “indecent” material in broadcasting.
2.6.5 – Recent Restrictions to Freedom of the Press
Some of the recent issues in restrictions of free press include: the U.S. military censoring blogs written by military personnel; the Federal Communications Commission censoring television and radio, citing obscenity; Scientology suppressing criticism, citing freedom of religion; and censoring of WikiLeaks at the Library of Congress. There has also been some controversy over the U.S. government’s position that the media does not have the right to not reveal its sources. There are other critiques that claim the “war on terror” has been a pretext for further restrictions on free press.
2.7 – Freedom of Assembly and Petition
The First Amendment establishes the right to assembly and the right to petition the government.
2.7.1 – Right to Petition
The Petition Clause in the First Amendment states, ” Congress shall make no law… abridging … the right of the people… to petition the government for a redress of grievances. ” The Petition Clause prohibits Congress from restricting the people’s right to appeal to government in favor of or against policies that affect them or about which they feel strongly, including the right to gather signatures in support of a cause and to lobby legislative bodies for or against legislation. A simplified definition of the right to petition is: the right to present requests to the government without punishment or reprisal.
Petition can be used to describe, “any nonviolent, legal means of encouraging or disapproving government action, whether directed to the judicial, executive, or legislative branch. Lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, peaceful protests and picketing: all public articulation of issues, complaints and interests designed to spur government action qualifies under the petition clause.”
The right to petition grants people not only the freedom to stand up and speak out against injustices they feel are occurring, but also grants the power to help change those injustices. It is important to note that in response to a petition from a citizen or citizens, the government is not required to actually respond to or address the issue. Under the Petition Clause, the government is only required to provide a way for citizens to petition, and a method in which they will receive the petition.
2.7.2 – Limiting the Right to Petition
In the past, Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835, the House of Representatives adopted the Gag Rule, barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws were punished—again, the Supreme Court did not rule on the matter.
2.7.3 – Freedom of Assembly and Association
Civil Rights Movement: The right to assembly protects citizens’ rights to gather together to peacefully protest. This right was frequently exercised during the Civil Rights Movement (depicted here).
Freedom of Assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue, and defend common interests. The right to freedom of association is recognized as a human and political right, and a civil liberty. Freedom of assembly and freedom of association may be used to distinguish between the freedom to assemble in public places and the freedom of joining an association, but both are recognized as rights under the First Amendment’s provision on freedom of assembly.
2.7.4 – Freedom of Assembly and Right to Petition
The right of assembly was originally distinguished from the right to petition. In United States v. Cruikshank (1875), the Supreme Court held that “the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or duties of the National Government, is an attribute of national citizenship, and, as such, under protection of, and guaranteed by, the United States. ” Justice Waite’s opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right, while the right to petition was labeled to be a primary right. Later cases, however, paid less attention to these distinctions. The right to petition is generally concerned with expression directed to the government seeking redress of a grievance, while the right to assemble is speaking more so to the right of Americans to gather together.
3 – The Second Amendment: The Right to Bear Arms
3.1 – History and Current Status
The Second Amendment gives the right to bear arms, and can arguably apply to individuals or state militias depending on interpretation.
The Second Amendment to the US constitution was adopted in 1791 as part of the US Bill of Rights. At the time that the amendment was written, there was controversy around the question of state versus federal rights. Anti-federalists were concerned that the new US government would be able to maintain a standing army, which might be temptation to abuse power. The right to bear arms was seen as a check against tyranny, both domestic and foreign, and was designed to help states easily raise organized militias.
Minute Man : Ideals that helped to inspire the Second Amendment are in part symbolized by the minutemen, civilian colonists who independently organized to form well-prepared militia companies self-trained in weaponry, tactics, and military strategies from the American colonial partisan militia during the American Revolutionary War.
In the 20th century, the wording of Second Amendment has been the focus of controversy. The amendment reads “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. ” In some interpretations of the bill the right to bear arms is a collective right, exclusively or primarily given to states to arm a militia. Others interpret it as an individual right enabling people to keep and bear arms outside of any organization for other lawful uses.
Recent Supreme Court rulings, including the District of Columbia v. Heller (2008) have leaned towards the individual interpretation of the amendment. This ruling overturned Washington D.C.’s legislation that banned handguns in personal homes. In McDonald v. Chicago (2010), the Supreme Court ruled that Second Amendment rights could not be limited by state or local governments. However, in both cases the court has still ruled that governments can put some restrictions on gun ownership even if they can not ban it outright.
4 – The Right to Privacy
4.1 – Introduction
The Right to Privacy was an article that advocated for the protection of a citizen’s private matters.
4.1.1 – Background
United States privacy law embodies several different legal concepts. One is the invasion of privacy. It is a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into his or her private affairs, discloses his or her private information, publicizes him or her in a false light, or appropriates his or her name for personal gain.
Harvard Law Review, Right to Privacy: The Right to Privacy was published at the Harvard Law Review in 15 December, 1890.
The Right to Privacy is a law review article written by Samuel Warren and Louis Brandeis. It was published in the 1890 Harvard Law Review. It is one of the most influential essays in the history of American law. The article is widely regarded as the first publication in the United States to advocate a right to privacy, articulating that right primarily as a right to be left alone. It was written primarily by Louis Brandeis although credited to both men, on a suggestion of Warren based on his deep-seated abhorrence of the invasions of social privacy. William Prosser, in writing his own influential article on the privacy torts in American law, attributed the specific incident to an intrusion by journalists on a society wedding. However, in truth it was inspired by more general coverage of intimate personal lives in society columns of newspapers.
4.1.2 – Defining the Necessity of the Right to Privacy
The authors begin the article by noting that it has been found necessary from time to time to define anew the exact nature and extent of the individual’s protections of person and property. The article states that the scope of such legal rights broadens over time — to now include the right to enjoy life — the right to be left alone.
Then the authors point out the conflicts between technology and private life. They note that recent inventions and business methods, such as instant pictures and newspaper enterprise have invaded domestic life, and numerous mechanical devices may make it difficult to enjoy private communications.
The authors discuss a number of cases involving photography, before turning to the law of trade secrets. Finally, they conclude that the law of privacy extends beyond contractual principles or property rights. Instead, they state that it is a right against the world.
4.1.3 – Remedies and Defenses
The authors consider the possible remedies available. They also mention the necessary limitations on the doctrine, excluding matters of public or general interest, privileged communications such as judicial testimony, oral publications in the absence of special damage, and publications of information published or consented to by the individual. They pause to note that defenses within the law of defamation — the truthfulness of the information published or the absence of the publisher’s malice — should not be defenses. Finally, they propose as remedies the availability of tort actions for damages and possible injunctive relief.
4.1.4 – Modern Tort Law
In the United States today, “invasion of privacy” is a commonly used cause of action in legal pleadings. Modern tort law includes four categories of invasion of privacy:
- Intrusion of solitude: physical or electronic intrusion into one’s private quarters
- Public disclosure of private facts: the dissemination of truthful private information which a reasonable person would find objectionable
- False light: the publication of facts which place a person in a false light, even though the facts themselves may not be defamatory
- Appropriation: the unauthorized use of a person’s name or likeness to obtain some benefits.
4.1.5 – Constitutional Basis for the Right to Privacy
The Constitution only protects against state actors. Invasions of privacy by individuals can only be remedied under previous court decisions.
The Fourth Amendment to the Constitution of the United States ensures 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.
The First Amendment protects the right to free assembly, broadening privacy rights. The Ninth Amendment declares the fact that if a right is not explicitly mentioned in the Constitution it does not mean that the government can infringe on that right. The Supreme Court recognized the 14th Amendment as providing a substantive due process right to privacy. This was first recognized by several Supreme Court Justices in Griswold v. Connecticut, a 1965 decision protecting a married couple’s rights to contraception. It was recognized again in 1973 Roe v. Wade, which invoked the right to privacy in order to protect a woman’s right to an abortion.
4.2 – Privacy Rights and Abortion
Abortion rights are can be determined by state courts and the Supreme Court and still continues to be a highly debated right for women.
4.2.1 – Background
Abortion in the United States has been legal in every state since the 1973 Supreme Court decision Roe v. Wade. Prior to the ruling, the legality of abortion was decided by each state; it was illegal in 30 states and legal under certain cases in 20 states. Roe established that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
Before Roe v. Wade, abortion was legal in several areas of the country, but that decision imposed a uniform framework for state legislation on the subject, and established a minimal period during which abortion must be legal (under greater or lesser degrees of restriction throughout the pregnancy). That basic framework, modified in Casey, remains nominally in place, although the effective availability of abortion varies significantly from state to state. Abortion remains one of the most controversial topics in United States culture and politics.
4.2.2 – Later Judicial Decisions
Signing the Partial-Birth Abortion ban.: The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls “partial-birth abortion”, often referred to in medical literature as intact dilation and extraction.
In the 1992 case of Planned Parenthood v. Casey, the Court abandoned Roe’s strict trimester framework. Instead adopting the standard of undue burden for evaluating state abortion restrictions, but reemphasized the right to abortion as grounded in the general sense of liberty and privacy protected under the constitution: “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law. ” The controlling word in the cases before us is “liberty. ”
The Supreme Court continues to grapple with cases on the subject. On April 18, 2007 it issued a ruling in the case of Gonzales v. Carhart, involving a federal law entitled the Partial-Birth Abortion Ban Act of 2003, which President George W. Bush had signed into law. The law banned intact dilation and extraction, which opponents of abortion rights referred to as “partial-birth abortion,” and stipulated that anyone breaking the law would get a prison sentence up to 2.5 years. The United States Supreme Court upheld the 2003 ban by a narrow majority of 5-4, marking the first time the Court has allowed a ban on any type of abortion since 1973. Justices Antonin Scalia, Clarence Thomas, and the two recent appointees, Samuel Alito and Chief Justice John Roberts, joined the swing vote, which came from moderate justice Anthony Kennedy.
4.2.3 – State-by-State Legal Status
Various states have passed legislation on the subject of feticide. On March 6, 2006, South Dakota Governor Mike Rounds signed into law a pro-life statute, which made performing abortions a felony, and that law was subsequently repealed in a November 7, 2006 referendum. On February 27, 2006, Mississippi’s House Public Health Committee voted to approve a ban on abortion, and that bill died after the House and Senate failed to agree on compromise legislation. Several states have enacted trigger laws, which would take effect if Roe v. Wade were overturned. North Dakota HB 1572 or the Personhood of Children Act, which passed the North Dakota House of Representatives on February 18, 2009, but was later defeated in the North Dakota Senate, aimed to allocate rights to the pre-born, partially born, and if passed, would likely have been used to challenge Roe v. Wade.
Voter opposition to these ballot initiatives has proven to be far stronger than the support, despite the fact that American citizens poll as being much more evenly divided on the issue of abortion. Other states are considering personhood amendments banning abortion, some through legislative methods and others through citizen initiative campaigns. Among these states are Florida, Ohio, Georgia, Texas, and Arkansas.
4.3 – Privacy Rights and National Security
National security practices impact privacy rights for the well-being and domestic security of the United States.
4.3.1 – Background
The concept of national security became an official guiding principle of foreign policy in the United States when U.S. President Harry S. Truman signed the National Security Act of 1947 on July 26, 1947.
Together with its 1949 amendment, this act stood as the precursor to the Department of Defense. It also established the National Security Council and the Central Intelligence Agency, while subordinating the military branches to the Secretary of Defense. The Act did not define national security. Its ambiguity made it a powerful phrase to invoke whenever issues threatened by other interests of the state came up for discussion and decision.
The realization that national security encompasses more than just military security was present early on. The U.S. National Security Act of 1947 was set up to advise the President on the integration of domestic, military and foreign policies relating to national security.
4.3.2 – Rights and Freedom under National Security
Bush signs USA PATRIOT Improvement and Reauthorization Act: United States President George W. Bush shakes hands with U.S. Senator Arlen Specter after signing H.R. 3199, the USA PATRIOT Improvement and Reauthorization Act of 2005 in the East Room of the White House
The measures adopted to maintain national security in the face of threats to society has led to ongoing dialectic, particularly in liberal democracies, on the appropriate scale and role of authority in matters of civil and human rights.
Tension exists between preservation of rights and freedoms of individuals. Although national security measures are imposed to protect society as a whole, many such measures will restrict the rights and freedoms of all individuals in society. The concern is that where the exercise of national security laws is not subject to good governance, the rule of law, and strict checks and balances, national security may simply serve as a pretext for suppressing unfavorable political and social views. Taken to its logical conclusion, this view contends that measures like mass surveillance and censorship of mass media could ultimately lead to an Orwellian dystopia.
In the United States, the politically controversial USA Patriot Act and other government action has raised two main questions – to what extent should individual rights and freedoms be restricted and can the restriction of civil rights for the sake of national security be justified?
4.4 – Privacy Rights and the Right to Die
There is a wide range of public opinion about the right-to-die movement in the United States, yet It is only legal in a few states.
4.4.1 – Background
Euthanasia is illegal in all states of the United States. Physician aid-in-dying (PAD), or assisted suicide, is legal in the states of Washington, Oregon, and Montana. The key difference between euthanasia and PAD is who administers the lethal dose of medication. Euthanasia requires the physician or another third party to administer the medication, whereas PAD requires the patient to self-administer the medication and to determine whether and when to do this. Attempts to legalize PAD resulted in ballot initiatives and “legislation bills” in the United States in the last 20 years, as follows.
- Voters in the state of Washington saw Ballot Initiative 119 in 1991.
- The state of California placed Proposition 161 on the ballot in 1992.
- Oregon voters passed Measure 16 (Death with Dignity Act) in 1994.
- The state of Michigan included Proposal B in their ballot in 1998.
- Washington’s Initiative 1000 passed in 2008.
4.4.2 – Public Opinion on Euthanasia in the United States
There is a wide range of public opinion about euthanasia and the right-to-die movement in the United States, which reflects their religious and cultural diversity. During the past 30 years, public opinion research shows that views on euthanasia tend to correlate with religious affiliation and culture, though not gender.
4.4.3 – Assisted Suicide in the United States
Physician-assisted suicide in the United States is legal in the states of Oregon, Montana, and Washington. The process is set forth in law, including the requirements that the patient must be of sound mind when requesting assisted suicide, as confirmed by a doctor and other witnesses. The patient must also be diagnosed with a terminal illness.
The Oregon Death with Dignity Act and the Washington statute modeled after it, set certain requirements and safeguards before a person may commit suicide with a doctor’s assistance. The patient must be of sound mind when they request a prescription for a lethal dose of medication. Two doctors must confirm a diagnosis of terminal illness with no more than six months to live. Two witnesses, one non-doctor unrelated to the patient, must confirm the patient’s request, and the patient must make a second request after 15 days.
4.4 – Privacy Rights and Sexuality
Rights to sexuality allow people in the United States to express sexual orientation without discrimination.
4.4.1 – Background
The right to sexuality incorporates the right to express one’s sexuality, and to be free from discrimination on the grounds of sexual orientation. It specifically refers to the protection of the rights of people of diverse sexual orientations, including lesbian, gay, bisexual and transgender (LGBT) people (although it is equally applicable to heterosexuality). The right to sexuality, and to freedom from discrimination on the grounds of sexual orientation, is based on the universality of human rights belonging to every person by virtue of being human.
Transgender Symbol: From the female and male symbols. Intersexual or transgender.
The right to sexuality does not exist explicitly in international human rights law; rather, it is found in a number of international human rights instruments including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
4.4.2 – LGBT Rights in the United States
Lesbian, gay, bisexual, and transgender rights in the United States have evolved over time and vary on a state-by-state basis. Sexual acts between consenting adults of the same sex (depending on the age of consent in each state, varying from age 16 to 21), and adolescents of a close age, have been legal nationwide in the U.S. since 2003, pursuant to the U.S. Supreme Court ruling in Lawrence v. Texas.
Twenty-one states plus Washington, D.C. outlaw discrimination based on sexual orientation, and sixteen states plus Washington, D.C. outlaw discrimination based on gender identity or expression. Hate crimes based on sexual orientation or gender identity are also punishable by federal law under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009.
Adoption policies in regard to LGBT parents also varied greatly from state to state, but since March 2016, a federal judge in Mississippi overturned the last remaining state law that prohibited such adoptions.
5 – The Rights of the Accused
5.1 – Introduction
The rights of the accused include the right to a fair trial; due process; and the right to privacy.
5.1.1 – Background
The rights of the accused, include the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.
Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defendant prove that s/he is innocent; any doubt is resolved in favor of the defendant. Similarly, all such jurisdictions allow the defendant the right to legal counsel and provide any defendant who cannot afford their own lawyer with a lawyer paid for at the public expense (which is in some countries called a “court-appointed lawyer”).
First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature, as well as strongly individualistic: They serve negatively to protect the individual from the excesses of the state. First-generation rights include, among other things, freedom of speech, the right to a fair trial, freedom of religion and voting rights.
Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be “first-generation rights”, and the theory of negative and positive rights considers them to be generally negative rights.
Mural, Falls Road, Belfast.: The mural on the ‘International Wall’ depicts Frederick Douglass (1815-1895), a former slave who became one of the foremost leaders of the abolitionist movement which fought to end slavery within the United States in the decades prior to the Civil War. Douglass later served as an adviser to President Abraham Lincoln during the Civil War and fought for the adoption of constitutional amendments that guaranteed voting rights and other civil liberties for blacks. He is still revered today for his contributions against racial injustice.
Civil and political rights are not codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to be natural rights. Thomas Jefferson wrote in his 1774 A Summary View of the Rights of British America “a free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate.
5.1.2 – United States Criminal Procedure
United States criminal procedure derives from several sources of law: the baseline protections of the United States Constitution, federal and state statutes, federal and state rules of criminal procedure (such as the Federal Rules of Criminal Procedure), and state and federal case law either interpreting the foregoing or deriving from inherent judicial supervisory authority.
The United States Constitution, including the United States Bill of Rights and subsequent amendments, contains provisions regarding criminal procedure. Due to the incorporation of the Bill of Rights, all of these provisions apply equally to criminal proceedings in state courts, with the exception of the Grand Jury Clause of the Fifth Amendment, the Vicinage Clause of the Sixth Amendment, and (maybe) the Excessive Bail Clause of the Eighth Amendment.
5.2 – The Fourth Amendment and Search and Seizure
The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights guarding against unreasonable searches and seizures.
5.2.3 – Background
Bill of Rights: 175th anniversary of the Bill of Rights commemorated on 1966 US postage stamp Plate block of four.
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights ([fig:9477]]) guarding against unreasonable searches and seizures, as well as requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance (a type of general search warrant) in the American Revolution. The amendment also states that a search or seizure should be limited in scope according to specific information supplied by law enforcement to the issuing court. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
The text of the Fourth Amendment states the following: “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. ”
For instance, the owner of the property in question may consent to the search. The consent must be voluntary, but there is no clear method of determining this; rather, a court will consider the “totality of the circumstances” in assessing whether consent was voluntary. Police officers are not required to advise a suspect that he/she may refuse the search. There are also some circumstances in which a third party who has equal control, or common authority, over the property may consent to a search.
When an individual does not possess a “reasonable expectation of privacy” that society is willing to acknowledge in a particular piece of property, any interference by the government with regard to that property is not considered a search subject to the Fourth Amendment, and a warrant is never required. For example, courts have found that a person does not possess a reasonable expectation of privacy in information transferred to a third party, such as writing on the outside of an envelope sent through the mail or left for pick-up in an area where others might view it. While that does not mean that the person has no reasonable expectation of privacy in the contents of that envelope, courts have held that one does not possess a reasonable expectation of privacy that society is willing to acknowledge in the contents of garbage left outside the curtilage of a home.
5.3 – The Fifth Amendment, Self Incrimination, and Double Jeopardy
The Fifth Amendment to the U.S. Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure.
5.3.1 – Background on the Fifth Amendment
The Fifth Amendment (Amendment V) to the United States Constitution, part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law, which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase ” due process ” (also found in the 14th Amendment) both trace their origins to the Magna Carta.
Magna Carta: Magna Carta is one of the major documents in British history that set forth legal precedents that would later be interpreted as protecting the civil rights of English subjects
The text of the Fifth Amendment reads as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
5.3.2 – Self Incrimination
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties, or forfeiture.
Historically, the legal protection against self-incrimination was directly related to the question of torture for extracting information and confessions.
Protection against self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
5.3.3 – Double Jeopardy
The Double Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal, subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and multiple punishments in the same indictment. Jeopardy “attaches” when the jury is impaneled, the first witness is sworn, or a plea is accepted.
The government is not permitted to appeal or try again after the entry of an acquittal. The prohibition extends to a directed verdict before the case is submitted to the jury, a directed verdict after a deadlocked jury, an appellate reversal for sufficiency (except by direct appeal to a higher appellate court), and an “implied acquittal” via conviction of a lesser included offense.
Blockburger v. United States addresses multiple punishments, including prosecution after conviction. In Blockburger v. United States (1932), the Supreme Court announced the following test: the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Blockburger is the default rule, unless the legislature intends to depart from it via enacted law; for example, Continuing Criminal Enterprise (CCE) may be punished separately from its predicates, as can conspiracy.
The rule for prosecution after mistrials depends on who sought the mistrial. If the defendant moved for a mistrial, there is no bar to retrial, unless the prosecutor acted in bad faith. For example, the prosecutor goads the defendant into moving for a mistrial because the government specifically wanted a mistrial. If the prosecutor moves for a mistrial, there is no bar to retrial if the trial judge finds “manifest necessity” for granting the mistrial. The same standard governs mistrials granted sua sponte.
5.4 – The Exclusionary Rule
The exclusionary rule holds that evidence collected in violation of the defendant’s rights is sometimes inadmissible.
5.4.1 – Background
The exclusionary rule is a legal principle in the United States holding that evidence collected or analyzed in violation of the defendant ‘s constitutional rights is sometimes inadmissible for criminal prosecution. This may be considered an example of a prophylactic rule formulated by the judiciary in order to protect a constitutional right. However, in some circumstances, the exclusionary rule may also be considered to follow directly from the constitutional language. For example, the Fifth Amendment’s command that no person “shall be deprived of life, liberty or property without due process of law. ”
The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide disincentive to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment of the Bill of Rights. The exclusionary rule furthermore applies to violations of the Sixth Amendment, which guarantees the right to counsel.
Most states have their own exclusionary remedies for illegally obtained evidence under their state constitutions and/or statutes. This rule is occasionally referred to as a legal technicality because it allows defendants a defense that does not address whether the crime was actually committed. In this respect, it is similar to the explicit rule in the Fifth Amendment protecting people from double jeopardy. In strict cases, when an illegal action is used by police/prosecution to gain any incriminating result, all evidence whose recovery stemmed from the illegal action can be thrown out from a jury.
The exclusionary rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors.
5.4.2 – Limitations of the Rule
The exclusionary rule was passed in 1917, and does not apply in a civil case, a grand jury proceeding, or a parole revocation hearing.
Even in a criminal case, the exclusionary rule does not simply bar the introduction of all evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments.
The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United States v. Alvarez-Machain, 504 U.S. 655, the Supreme Court decided that property owned by aliens in a foreign country is admissible in court. Prisoners, probationers, parolees and persons crossing U.S. borders are among those receiving limited protections. Corporations, by virtue of being, also have limited rights under the Fourth Amendment (see corporate personhood).
5.4.3 – Criticism of the Rule
U.S. Supreme Court Seal: The Supreme Court of the United States is the highest court in the country. It has ultimate (but largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases.
The exclusionary rule as it has developed in the U.S. has been long criticized, even by respected jurists and commentators. Judge Benjamin Cardozo, generally considered one of the most influential American jurists, was strongly opposed to the rule, stating that under the rule, “The criminal is to go free because the constable has blundered.”
5.5 – The Sixth Amendment and the Right to Counsel
The Assistance of Counsel Clause in the Sixth Amendment allows to any person accused the right to counsel for his defense.
5.5.1 – Background
Grand Jury at Arcadia Hotel Fire.: A grand jury investigating the fire that destroyed the Arcadia Hotel in Boston, Massachusetts in 1913.
The Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right… to have the Assistance of Counsel for his defense.”
The assistance of counsel clause includes, as relevant here, five distinct rights:
- The right to counsel of choice
- The right to appointed counsel
- The right to conflict-free counsel
- The effective assistance of counsel
- The right to represent oneself pro se
As stated in Brewer v. Williams, 430 U.S. 387 (1977), the right to counsel means “at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or accusation.” Brewer goes on to conclude that once adversarial proceedings have begun against a defendant, he has a right to legal representation when the government interrogates him and that when a defendant is arrested, “arraigned on an arrest warrant before a judge” and “committed by the court to confinement… there can be no doubt that judicial proceedings have been initiated.”
Individuals subject to grand jury proceedings do not have a Sixth Amendment right to counsel because grand juries are not considered by the U.S. Supreme Court to be criminal proceedings, which trigger the protections of that constitutional protection.
In the 2009-2010 term of the United States Supreme Court, it was handed down that a suspect’s request for legal counsel is only good for fourteen days after the suspect is released from police custody.
5.5.2 – Choice of Counsel
Subject to considerations such as conflicts of interest, scheduling, counsel’s authorization to practice law in the jurisdiction, and counsel’s willingness to represent the defendant (whether pro bono or for a fee), criminal defendants have a right to be represented by counsel of their choice. The remedy for erroneous depravation of first choice counsel is automatic reversal.
Whether counsel is retained or appointed, the defendant has a right to counsel without a conflict of interest. If an actual conflict of interest is present, and that conflict results in any adverse effect on the representation, the result is automatic reversal. The general rule is that conflicts can be knowingly and intelligently waived, but some conflicts are non-waiveable.
5.5.3 – Appointment of Counsel
In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that “in a capital case, where the defendant is unable to employ counsel, and is incapable of adequately making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.” In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court ruled that in all federal cases, counsel would have to be appointed for defendants who were too poor to hire their own. However, in Betts v. Brady, 316 U.S. 455 (1942), the Court declined to extend this requirement to the state courts under the Fourteenth Amendment unless the defendant demonstrated “special circumstances” requiring the assistance of counsel.
5.5.4 – Ineffective Assistance of Counsel
In Strickland v. Washington (1984), the Court held that, on collateral review, a defendant may obtain relief if the defendant demonstrates both that the defense counsel’s performance fell below an objective standard of reasonableness (the “performance prong”) and that, but for the deficient performance, there is a reasonable probability that the result of the proceeding would have been different (the “prejudice prong”).
To satisfy the prejudice prong of Strickland, a defendant who pleads guilty must show that, but for counsel’s deficient performance, he or she would not have plead guilty.
5.5.5 – Pro Se Legal Representation in the United States
A criminal defendant may represent himself, unless a court deems the defendant to be incompetent to waive the right to counsel.
In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court recognized the defendant’s right to pro se representation. However, under Godinez v. Moran, 509 U.S. 389 (1993), a court can require a defendant to be represented by counsel if it believes the accused less than fully competent to adequately proceed without counsel.
Some states extend the right to counsel to all matters where a defendant’s liberty interest is threatened. The New Jersey Supreme Court unanimously held that, regardless of whether the proceeding is labeled as civil, criminal, or administrative, if a defendant faces a loss of liberty, she or he is entitled to appointed counsel if indigent. Anne Pasqua, et al. v. Hon. Gerald J. Council, et al., 186 N.J. 127 (2006) (March 2006).
5.6 – The Sixth Amendment and Jury Trials
The Sixth Amendment U.S. Constitution is the part of the Bill of Rights, which sets forth rights related to criminal prosecutions.
5.6.1 – Background
The Sixth Amendment (Amendment VI) to the United States Constitution is the part of the United States Bill of Rights, which sets forth rights related to criminal prosecutions. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.
The Sixth Amendment states the following: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
5.6.2 – Impartial Jury
The right to a jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses are those punishable by imprisonment for not more than six months and are not covered by the jury requirement. Even where multiple petty offenses are concerned, the total time of imprisonment possibly exceeding six months, the right to a jury trial does not exist. Also, in the United States, except for serious offenses (such as murder), minors are usually tried in a juvenile court, which lessens the sentence allowed, but forfeits the right to a jury.
Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to “a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted.” Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.
When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by “historical accident,” and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury. Although on the basis of history and precedent the Sixth Amendment mandates unanimity in a federal jury trial, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment, while requiring States to provide jury trials for serious crimes, does not incorporate all the elements of a jury trial within the meaning of the Sixth Amendment and does not require jury unanimity.
5.6.3 – Impartiality
The Jury Panel: Great Lakes, Ill. (Dec. 23, 2008) Legalman 1st Class Christie Richardson, a trial services legalman assigned to Region Legal Service Office Midwest makes an opening statement for the prosecution to a jury during a mock trial. Richardson was part of a legal team demonstrating the legal system for 22 Navy Junior Reserve Officers Training Corps (NJROTC) cadets from Chicago-area high schools.
The Sixth Amendment requires juries to be impartial. Impartiality has been interpreted as requiring individual jurors to be unbiased. At voir dire, each side may question potential jurors to determine any bias, and challenge them if the same is found; the court determines the validity of these challenges for cause. Defendants may not challenge a conviction on the basis that a challenge for cause was denied incorrectly if they had the opportunity to use peremptory challenges.
Another factor in determining the impartiality of the jury is the nature of the panel from which the jurors are selected. The jury panel must represent a fair cross-section of the community; the defendant may establish that the requirement was violated by showing that the allegedly excluded group is a “distinctive” one in the community, that the representation of such a group in venires is unreasonable and unfair in regard to the number of persons belonging to such a group, and that the under-representation is caused by a systematic exclusion in the selection process. Thus, in Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court invalidated a state law that exempted women who had not made a declaration of willingness to serve from jury service, while not doing the same for men.
5.7 – The Eighth Amendment and Cruel and Unusual Punishment
The Eight Amendment determines the provisions for cruel and unusual punishment.
5.7.1 – Background
The Eighth Amendment of the United States Constitution prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment’s Cruel and Unusual Punishment clause applies to states. The phrases employed originated in the English Bill of Rights of 1689.
The Eighth Amendment was adopted as part of the Bill of Rights in 1791. The provision was largely inspired by the case of Titus Oates. The Englishman was tried in 1685 for multiple acts of perjury during the ascension of King James II after a number of people whom Oates had wrongly accused of treason were executed. Oates was sentenced to imprisonment, along with an annual ordeal of whipping and time in the pillory. The Oates case became a topic of the U.S. Supreme Court’s Eighth Amendment jurisprudence. Oates’s punishment involved ordinary penalties collectively imposed in an excessive and unprecedented manner. The reason Oates did not receive the death penalty may be because the punishment would have deterred even honest witnesses from testifying in later cases.
The Virginia Declaration of Rights of 1776 had already adopted the English Bill of Rights’ stance on cruel and unusual punishment The state later recommended that this language also be included in the Constitution.
According to the Supreme Court, the Eighth Amendment forbids some punishments entirely, prohibiting other punishments that are deemed excessive when compared to the crime or the competence of the perpetrator.
5.7.2 – Punishments Forbidden for Certain Crimes
Punishment of the Paddle: This is an old form of punishment.
The case of Weems v. United States, (1910) marked the first time that the Supreme Court exercised judicial review to overturn a criminal sentence as cruel and unusual. The Court overturned a punishment called cadena temporal, which mandated “hard and painful labor,” shackling for the duration of incarceration and permanent civil disabilities. This case is often viewed as establishing a principle of proportionality under the Eighth Amendment. However, others have written “it is hard to view Weems as announcing a constitutional requirement of proportionality. ”
In Trop v. Dulles, (1958), the Supreme Court held that taking away citizenship from a natural-born citizen for a crime was unconstitutional. The punishment was considered “more primitive than torture” because it involved the “total destruction of the individual’s status in organized society. ”
In Furman v. Georgia (1972), Justice Brennan wrote that there are four principles by which particular punishment is deemed cruel and unusual: Punishment should not be patently unnecessary, degrading to human dignity, inflicted in a wholly arbitrary fashion, or severe enough to be clearly rejected throughout society.
It is up to individual states to decide if death can be considered “cruel and unusual” punishment. As of 2016, 31 states (and the federal government) had death as an acceptable form of punishment. Justice Brennan also wrote that no state would pass a law violating any one of these principles. Court decisions regarding the Eighth Amendment would hence involve a “cumulative” analysis of the implication of each of the four principles, setting a standard in the way punishments were considered cruel and unusual.
In California, more than 700 inmates await execution, with the last execution occurring in 2006. Because California’s death penalty was approved by voter initiative, it can only be repealed by voters and not the legislature. Prop. 62 on the Nov. 8, 2016 ballot will ask voters to do repeal its death penalty.
5.8 – The Miranda Warning
The Miranda warning is a statement read by police to criminal suspects that asserts their right to counsel and right to remain silent.
5.8.1 – Background
The Miranda warning (also referred to as Miranda rights) is a warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.
Incorporating Amendment V: Here, a US law enforcement official reads an arrested person his rights. Amendment V, the right to due process, has been incorporated against the states.
In other words, a Miranda warning is a preventive criminal procedure rule that law enforcement is required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. In Miranda v. Arizona, the Supreme Court held that the admission of an elicited incriminating statement by a suspect not informed of these rights violates the Fifth and the Sixth Amendment right to counsel.
Mirada refers to Ernesto Miranda. In 1963 Miranda was arrested in Phoenix and charged with rape, kidnapping, and robbery. Miranda was not informed of his rights prior to the police interrogation. During the two-hour interrogation, Miranda allegedly confessed to committing the crimes, which the police apparently recorded. Miranda, who had not finished ninth grade and had a history of mental instability, had no counsel present. At trial, the prosecution’s case consisted solely of his confession. Miranda was convicted of both rape and kidnapping and sentenced to 20 to 30 years in prison. Miranda appealed to the U.S. Supreme Court and won his case. The Supreme Court devised a statement that must be read to those who are arrested.
Thus in theory, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial. However, in the pragmatic interactions between police and citizens, this is rarely true. In Berghuis v. Thompkins, the court held that unless a suspect actually states that he is relying on this right, his subsequent voluntary statements can be used in court and police can continue to interact with or question him.
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. The Miranda right to counsel and right to remain silent are derived from the self-incrimination clause of the Fifth Amendment.
It is important to note that immigrants who live in the United States illegally are also protected and should receive their Miranda warnings as well when being interrogated or placed under arrest. Aliens receive constitutional protections when they have come within the territory of the United States and have developed substantial connections with this country.
5.8.2 – Assertion of Miranda Rights
If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have “scrupulously honored” the defendant’s assertion and obtain a valid waiver before resuming the interrogation. In determining whether the police “scrupulously honored” the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between the termination of the original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.
The consequences of assertion of Fifth Amendment right to counsel are stricter. The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant contacts the police on his own volition. If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.
In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert the right.
5.8.3 – Exceptions of Miranda Rights
The Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule. The three exceptions are (1) the routine booking question exception (2) the jailhouse informant exception and (3) the public safety exception. Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered “interrogation” under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule.
6 – Terrorism and Security
6.1 – The First and Fourth Amendments and Issues of Terrorism and Security
Issues on privacy created new grounds for citizens to battle the constitutionality of security policies enacted after September 11th.
6.1.1 – Background
Since September 11, 2001, a number of high-profile incidents and security scares have occurred in Washington, D.C. In October 2001, anthrax-contaminated mail sent to members of Congress infected 31 staff members and killed two U.S. Postal Service employees. Issues in disclosing information and the surveillance of the population has created new grounds for citizens to battle the constitutionality of security policies enacted after September 11.
6.1.2 – The Fourth Amendment and Issues of Privacy
National Security Agency: The seal of the U.S. National Security Agency. The first use was in September 1966, replacing an older seal which was used briefly.
The Fourth Amendment has been held to mean that a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause. It also must be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. The Fourth Amendment applies to governmental searches and seizures. It does not apply to searches and seizures done by private citizens or organizations not acting on behalf of a government. The Bill of Rights originally only restricted the federal government in these matters. However, in Mapp v. Ohio, 1961, the Supreme Court ruled that the Fourth Amendment applies to states by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain a similar provision.
The protection of private conversations has been held to apply only to conversations where the participants have manifested a reasonable expectation that no other party is listening in on their conversation.The Fourth Amendment does not apply in the absence of such a reasonable expectation, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in the many countries where governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.
The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad. In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States. This means no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.
All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA (Foreign Intelligence Surveillance Act) and directed the NSA to spy directly on al Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental glitch” resulted in the interception of communications that were purely domestic in nature. This action was challenged by a number of groups, including Congress, as unconstitutional.
6.1.3 – Publication of Unclassified Information
Publicizing information as part of the First Amendment has produced legal and security repercussions between the citizens and the government. The Intelligence Community Whistleblower Protection Act of 1998 is a statutory procedure for a “whistleblower” in the intelligence community to report concerns with the propriety of a secret program. Essentially, the Act provides for disclosure to the agency Inspector General, with an appeal to the Congressional Intelligence Committees if the result of that disclosure is unsatisfactory. Former NSA official Russ Tice has asked to testify under the terms of the Act to provide information about highly classified Special Access Programs (SAPs) that were improperly carried out by both the NSA and the Defense Intelligence Agency.
It is unlikely that the New York Times could be held liable for publishing its article under established Supreme Court precedent. In Bartnicki v. Vopper, 532, the Supreme Court held that the First Amendment precluded liability for publication of illegally obtained communications if the topic involves a public controversy and the information was not obtained by a media defendant illegally. The high court in Bartnicki gave the radio station in question a pass because it did nothing itself illegal to obtain the information, even though the initial broadcast of the information was illegal.
6.2 – The Right to Due Process
Due process rights provides legal protections while a citizen is charged by the courts and other legal procedures.
6.2.1 – Background
The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. The Supreme Court of the United States interprets these two clauses as providing four protections: procedural due process in civil and criminal proceedings, substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.
Bill of Rights: This item is the enrolled original joint resolution of Congress, engrossed on parchment, proposing 12 amendments to the United States Constitution. The Federal Government’s official copy of the resolution is signed by Frederick Augustus Muhlenberg, Speaker of the House of Representatives, and John Adams, Vice President of the United States and President of the Senate.
This protection extends to all government proceedings that can result in an individual’s deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials.
6.2.2 – Procedural Due Process
At a basic level, procedural due process is essentially based on the concept of fundamental fairness. For example, in 1934, the United States Supreme Court held that due process is violated “if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. ” As construed by the courts, it includes an individual’s right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them. To put it more simply, where an individual is facing a deprivation of life, liberty, or property, procedural due process mandates that he or she be entitled to adequate notice, a hearing, and a neutral judge.
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever.
The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.
In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be an obvious example of cruel and unusual punishment.
6.2.3 – Substantive Due Process
The term substantive due process (SDP) is commonly used in two ways: first to identify a particular line of case law, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term substantive due process began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene, 1938. Those three types of rights are: the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment); restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities.”
6.3 – Roving Wiretaps
A roving wiretap is a wiretap specific to the United States that follows the surveillance target across his or her private communications.
6.3.1 – Background
This Phone Is Tapped: The US Patriot Act of 2001, Section 216, permits all phone calls to be recorded without a warrant or notification.
A roving wiretap is a wiretap specific to the United States that follows the surveillance target. For instance, if a target attempts to defeat surveillance by throwing away a phone and acquiring a new one, another surveillance order would usually need to be applied for. However, a roving wiretap defeats the target’s attempts at breaking the surveillance by changing location or their communications technology. It is allowed under amendments made to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Wiretap Statute) in 1988 by the Electronic Communications Privacy Act and was later expanded by section 604 of the Intelligence Authorization Act for Fiscal Year 1999. On May 26, 2011, the U.S. Senate voted to extend the provisions of the 2001 USA PATRIOT Act to search business records and allow for roving wiretaps.
6.3.2 – NSA Warrantless Surveillance Controversy
In 2007 a United States Foreign Intelligence Surveillance court ruling required that the NSA obtain a warrant when intercepting or eavesdropping on foreign-to-foreign intelligence if it passes through any U.S. networks. In response, the Bush administration passed stopgap legislation very quickly through Congress that temporarily relieved the NSA of this prior ruling. Director of National Intelligence Mike McConnell remarked to Congress that the new ruling could potentially decrease the amount of useful information they collected on groups like al-Qaeda by almost two thirds. He also stated that since applying for a warrant can run up to 90 pages, the process is exceedingly time consuming and labor intensive.
The American Civil Liberties Union (ACLU) brought many legal cases challenging the constitutionality of the bill, asserting that it violates Americans’ right to free speech and privacy. They have filed lawsuits, motions, and complaints in over 27 states to oppose any legislation that encourages unchecked government surveillance. In response to the government arguments, Caroline Fredrickson, Director of the ACLU Washington Legislative Office has said of the bill: “Where will Congress go from here? More unfettered power for an administration that has no respect for the privacy of the citizenry that elected it? ”
The stopgap expired in February 2008. By then, Congress and FISA reached a compromise on the details of the bill. ACLU advocates pushed to require that the NSA provide individual warrants when Americans were involved. On the other hand, U.S. intelligence agencies and the administration wanted as few obstacles in their way of intercepting private information. Both sides have shown the possibility of accepting a bill that would require a FISA court to approve NSA’s procedures while intercepting foreign intelligence when it comes to Americans.
However, a later addition to this bill, that was insisted on by then President Bush and Mike McConnell, granted retroactive immunity to telecommunications companies for any “intelligence activity involving communications that was designed to detect or prevent a terrorist attack” or attack preparations. The Bush administration has acknowledged that intelligence agencies conducted warrantless eavesdropping on Americans with the help of Telecom companies such as Verizon, AT&T, and Qwest. All three of these Telecom companies faced multiple civil lawsuits related to their handling of phone records and the passing of this bill granted them immunity.
In favor of the bill, McConnell has stated that such immunity was necessary to prevent the telecoms from being bankrupted and to encourage them to continue to cooperate with intelligence agencies. Bush said that he would veto any intelligence bill passed that did not include such immunity. Liz Rose, spokeswoman for the Washington office of the ACLU, said the language of the bill is a blank check that would cover not only the warrantless wiretapping program that the Bush administration has acknowledged, but any unconfirmed or previously unknown program. Senator Russ Feingold from the District of Washington promised to lead a filibuster to block approval of retroactive immunity. Retroactive immunity set the terrible precedent that breaking the law is permissible and companies need not worry about the privacy of their customers, Feingold said.
6.3.3 – Legal Issues
United States Constitution: “We the People”, as it appears in an original copy of the Constitution.
The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers such legal areas as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.
6.4 – The PATRIOT and Freedom Acts
The controversial Patriot Act was enacted following September 11 to protect national security, and allows the government extensive power over surveillance.
6.4.1 – Background of the PATRIOT Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), also commonly known as the Patriot Act, is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001. The Patriot Act came as a response to the terrorist attacks of September 11th and included:
Patriot Act Signing: President George W. Bush signs the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Anti-Terrorism Legislation, in the East Room Oct. 26. “With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger,” the President said in his remarks.
- A significant reduction of restrictions to law enforcement agencies’ gathering of intelligence within the United States
- An expansion of the Secretary of the Treasury’s authority to regulate financial transactions, particularly those involving foreign individuals and entities
- A broadening of the discretion allowed to law enforcement and immigration authorities in detaining and deporting immigrants suspected of terrorism-related acts.
The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied. On May 26, 2011, President Barack Obama used an Autopen to sign a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretaps, searches of business records (the library records provision), and conducting surveillance of lone wolves– individuals suspected of terrorist-related activities not linked to terrorist groups. Republican leaders questioned whether the use of the Autopen met the constitutional requirements for signing a bill into law.
Due to its controversial nature, a number of bills were proposed to amend the USA PATRIOT Act. These included the Protecting the Rights of Individuals Act, the Benjamin Franklin True Patriot Act, and the Security and Freedom Ensured Act (SAFE), none of which passed. In late January 2003, the founder of the Center for Public Integrity, Charles Lewis, published a leaked draft copy of an Administration proposal titled the Domestic Security Enhancement Act of 2003. This highly controversial document was quickly dubbed “PATRIOT II” or “Son of PATRIOT” by the media and organizations such as the Electronic Frontier Foundation. The draft, which was circulated to ten divisions of the Department of Justice, proposed to make further extensive modifications to extend the USA PATRIOT Act. It was widely condemned, although the Department of Justice claimed that it was only a draft and contained no further proposals.
6.4.2 – Controversy
The USA PATRIOT Act has generated a great deal of controversy since its enactment. Opponents of the Act have been quite vocal in asserting that it was passed opportunistically after the September 11 attacks. Opponents view the Act as one that was hurried through the Senate with little change or debate before it was passed. Senators Patrick Leahy and Russell Feingold proposed amendments to modify the final revision.
It was placed there without a warrant, which caused a serious conviction obstacle for federal prosecutors in court. Through the years the case has risen to the United States Supreme Court where the conviction was overturned in favor of the defendant. The court found that increased monitoring of suspects caused by such legislation like the Patriot Act directly put the suspects Constitutional rights in jeopardy.
The USA PATRIOT Act’s expansion of court jurisdiction to allow the nationwide service of search warrants proved controversial for the Electronic Frontiers Foundation (EFF). They believe that agencies will be able to shop for judges that have demonstrated a strong bias toward law enforcement with regard to search warrants, and use only those judges least likely to say no even if the warrant doesn’t satisfy the strict requirements of the Fourth Amendment to the Constitution. They also believe that the expansion reduces the likelihood that smaller ISPs or phone companies will try to protect the privacy of their clients by challenging the warrant in court; for example a small San Francisco ISP served with such a warrant may be unlikely to have the resources to appear before the New York court that issued it. They also assert that only the communications provider will be able to challenge the warrant as only they will know about it; many warrants are issued ex parte, which means that the target of the order is not present when the order is issued.
For a time, the USA PATRIOT Act allowed for agents to undertake “sneak and peek” searches. Critics such as the Electronic Privacy Information Center (EPIC) and the American Civil Liberties Union (ACLU) strongly criticized the law for violating the Fourth Amendment, with the ACLU going so far as to release an advertisement condemning it and calling for it to be repealed. However, supporters of the amendment such as Heather Mac Donald, a fellow at the Manhattan Institute and a contributing editor to the New York City Journal, expressed the belief that the act was necessary because the temporary delay in notification of a search order could stop terrorists from tipping off counterparts under investigation.
6.4.3 – The USA Freedom Act
The USA FREEDOM Act (“Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act”), more commonly known as the Freedom Act, is a U.S. law that was enacted on June 2, 2015, the day after the PATRIOT Act expired. The Freedom Act modified several provisions of the Patriot Act and limited the ability of American intelligence agencies, such as the NSA, to bulk-collect telecommunications data on US citizens. It restored authorization for roving wiretaps and tracking “lone wolf” terrorists.
6.5 – National Security Agency Surveillance
After 9/11 attacks, the United States government passed and extended policies of surveillance for public citizens.
6.5.1 – Background
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency (NSA) as part of the war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program, part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (web, email, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. Critics, however, claimed that it was an attempt to silence critics of the Bush administration and their handling of several hot button issues during its tenure. Under public pressure, the Bush administration ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court. Subsequently, in 2008 Congress passed the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008, which relaxed some of the original FISA court requirements.
During the Obama Administration, the NSA has officially continued operating under the new FISA guidelines. However, in April 2009, officials at the United States Department of Justice acknowledged that the NSA had engaged in over-collection of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.
6.5.2 – Constitutionl Law Issues
The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (checks and balances). If, as discussed above, no fair reading of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.
6.5.3 – Domestic vs. Foreign Intelligence
The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent an attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad, a foreign agent residing in the U.S., and a U.S. citizen abroad. The warrantless exception was struck down when both the target and the threat were deemed domestic. The legality of targeting Americans acting as agents of a foreign power and residing in this country has not been addressed by the U.S. Supreme Court, but has occurred at least once, in the case of Aldrich Ames.
7 – Slavery and Civil Rights
7.1 – Slavery and the Abolitionist Movement
Slavery continued until 1865, when abolitionists argued against its conditions as violating Christian principals and rights to equality.
7.1.1 – Slavery in the U.S.
While the US was founded on principles of representation, due process and universal rights, slavery remained one of the most persistent and visible exceptions to these ideals.
Slavery, including chattel slavery, was a legal institution in the US from the colonial period until the Emancipation Proclamation (1863) and Thirteenth Amendment of the Constitution (1865). Most slaves in the US were people brought from Africa and their descendants, and this racial dimension of US slavery continues to impact US civil rights debates. By 1860, four million people lived as slaves in the US, and most worked in the agriculture sector. The rise in the southern cotton industry after 1800 also led to a steady increase in slavery, which then became a major catalyst for the Civil War.
7.1.2 – Conditions of Slavery
The conditions of slavery were harsh, starting with the “middle passage” where Africans were stuffed into the hulls of ships like cargo. Some fifteen percent of enslaved people are estimated to have died during travel from Africa. In the US the conditions of slavery acted to dehumanize enslaved people denying them even basic rights. The use of native languages was banned, and it was illegal to learn or teach reading and writing. Marriages were banned, and children were often taken away from parents to be sold. It was also common for slave owners to sexually assault enslaved women. Finally, working conditions were long and hard, especially for field workers, and violence was an ever present part of life.
7.1.3 – Abolition
Frederick Douglass: Frederick Douglass was a freed slave prominent abolitionist and rights advocate.
Throughout this period many people worked to end slavery. Early abolitionist legislation included Congress prohibiting slavery in the Northwest Territory (1787), and a ban on the import or export of slaves (1808) in the US and Britain. Resistance to slavery also took other forms including institutions such as the Underground Railway that helped escaping slaves make their way to freedom.
Abolitionists came from various communities including religious groups such as the Quakers, white anti-slavery activists such as Harriet Beecher Stowe, and former slaves and free people of color such as Frederick Douglass, Robert Purvis and James Forten. While some abolitionists called for an immediate end to slavery, others favored more gradual approaches. These included the banning of slavery in the territories, and manumission campaigns encouraging individual owners to free slaves.
7.1.4 – Arguments against Slavery
Abolitionists used several arguments against slavery. As early as 1688, Quakers in Germantown, Pennsylvania presented a petition to end slavery based on religious obligation and natural rights to equality. In 1774, a group of enslaved people in Massachusetts petitioned the governor against slavery used similar arguments including the natural rights of all people, the demands of Christian brotherhood, and the harsh conditions of slavery. By the 1830s, evangelical groups became quite active in the abolitionist movement including the formation of the American Anti-Slavery Society in 1833. These groups often also supported other reform movements such as temperance movements and supports for public schools.
Early politicians and constitutional authors including Thomas Paine, Alexander Hamilton and Thomas Jefferson also had reservations about slavery because of their commitment to equal rights. However, many of these same politicians also owned slaves.
7.1.5 – Gradual Abolition and Conflict
By 1804, most of the northern states had moved towards the abolition of slavery. although this process was quite gradual, and freed slaves were often subject to racial segregation and discrimination. Manumission campaigns in the Upper South were also successful in increasing the number of free people of color in Virginia, Maryland and Delaware where, by 1810, three-quarters of Black people in Delaware were free.
Support for slavery remained the strongest in the southern states where slavery was an important economic institution for cotton and other agricultural industries strongest in the South. The conflict over slavery became a key catalyst for the Civil War that divided northern and southern states.
7.2 – Abolitionism and the Women’s Rights Movement
Many women involved in the early abolitionist movement went on to be important leaders in the early women’s rights and suffrage movements.
7.2.1 – Progressive Pre-War Period
A wide variety of progressive movements grew up during the decades leading up to the US Civil War. The activists involved hoped to make significant changes in society, including expanding rights and freedoms to a larger group of people living in the US.
Two of the most influential were the anti- slavery or abolitionist movement, and the women’s rights movement. These were also closely related as many of the women who would go on to be leaders in the women’s rights movement got their political start in the abolitionist movement.
While many women were active in the abolitionist movement they were often kept out of public, leadership and decision making positions. For example only two women attended the Agents ‘ Convention of the American Anti-Slavery Society in 1836. Women began to form their own abolition groups, organizing events such as the Anti-Slavery Convention of American Women held in 1837. This convention brought 200 women to New York City, where they called for the immediate abolition of slavery in the US. The delegates argued for an end to slavery based on the often brutal conditions of slavery, as well as the ways in which slavery violated christian principals and basic human right to equality.
7.2.2 – Women’s Rights Movement
Women involved in the early abolitionists movement also began to connect demands for equal right to their own lives and experiences, advocating for expanded education, employment and political rights including suffrage.
The 1848 Seneca Falls convention is one of the key early moments in the suffrage and women’s rights movement in the US. The convention was organized primarily by a group of Quaker women during a visit by Lucretia Mott, a Quaker woman well known for her role in the abolition movement and advocacy for women’s rights. The convention brought together 300 people, men and women, and produced a strong Declaration of Sentiments advocating for women’s equality including the right to vote.
7.2.3 – The Intersection of Race and Gender
Sojourner Truth: Sojourner Truth who had been bom into slavery won her own freedom and became a prominent abolitionist and women’s rights advocate.
As progressive movements grew, several divisions developed often over questions of identity and especially over the role women and people of color in the movements. In terms of Abolition more incremental groups preferred advocating against the expansion of slavery, but would often stop short of calling for full or immediate abolition. Supporters of this strategy often also advocated for colonization for freed slaves, a strategy that would see emancipated people sent to colonies established in Africa, such as Liberia.
Many advocates of incremental abolition and colonization also held more traditional views on the role of women, claiming that women should play a supporting role in both the abolitionist movement and in society more generally.
A more progressive and radical strain of abolition maintained that rights and moral standing were universal, and that whether people were of African or European decent, men or women they were all due to equal treatment and rights.
A well-known exchange between Catherine Beecher and Angelina Grimké two prominent women activists and writers highlighted these two perspectives. Beecher argued women should remain subordinate by divine law in her Essay on Slavery and Abolitionism with Reference to the Duty of American Females. While Grimké asserts the rights of women to engage in all political institutions that impact their lives.
The role of Black women in the suffrage movement was also sometimes problematic. For example, both emancipated women who had been slaves and free women of color were active in the abolitionist movement, but as the women’s movement grew there was often resistance on the part of the increasingly middle class, educated, white leadership to include Black women. For example while Sojourner Truth spoke to the Women’s Convention in Akron Ohio in 1851 there were conflicting reports over how the speech was received. Some claimed delegates welcomed both the speaker and message, and others claimed that delegates were hostile to having a Black speaker address them.
7.2.4 – Outcomes and Legacy
While women did not gain the right to vote in all sates until 1920, there were still some victories won for women’s rights in the period leading up to the Civil War. One of the most notable was New York State granting property rights to married women. This period of activism also set the foundation for the suffrage campaigns that would occur in the early 20th century, along with women’s rights, feminist and women of color movements that continue today.
7.3 – The Civil War Amendments
The Civil War Amendments protected equality for emancipated slaves by banning slavery, defining citizenship, and ensuring voting rights.
7.3.1 – Introduction
The 13th (1865), 14th (1868), and 15th Amendments (1870) were the first amendments made to the U.S. constitution in 60 years. Known collectively as the Civil War Amendments, they were designed to ensure the equality for recently emancipated slaves.
While the Emancipation Proclamation ended slavery in the 10 states that were still in rebellion, many citizens were concerned that the rights granted by war-time legislation would be overturned. The Republican Party controlled congress and pushed for constitutional amendments that would be more permanent and binding. The three amendments prohibited slavery, granted citizenship rights to all people born or naturalized in the United States regardless of race, and prohibited governments from infringing on voting rights based on race or past servitude.
7.3.2 – The 13th Amendment
This amendment explicitly banned slavery and involuntary servitude in the United States. An exception was made for punishment of a crime. This amendment also gave Congress the power to enforce the article through legislation.
7.3.3 – The 14th Amendment
This amendment set out the definitions and rights of citizenship in the United States. The first clause asserted that anyone born or naturalized in the United States is a citizen of the United States and of the state in which they live. It also confirmed the right to due process, life, liberty, and property. This overturned the Dred Scott v. Sandford (1857) Supreme Court ruling that stated that black people were not eligible for citizenship.
The amendment also defined the formula for determining political representation by apportioning representatives among states based on a count of all residents as whole persons. This contrasted with the pre-Civil War compromise that counted enslaved people as three-fifth in representation enumeration. Southern slave owners wanted slaves counted as whole people to increase the representation of southern states in Congress. Even after the 14th Amendment, native people not paying taxes were not counted for representation.
Finally, the amendment dealt with the Union officers, politicians, and debt. It banned any person who had engaged in insurrection or rebellion against the United States from holding civil or military office. Finally, it declared that no debt undertaken by the Confederacy would be assumed by the United States.
7.3.4 – The 15th Amendment
The First Vote: This image depicts the first black voters going the polls.
This amendment prohibited governments from denying U.S. citizens the right to vote based on race, color, or past servitude.
While the amendment provided legal protection for voting rights based on race, there were other means that could be used to block black citizens from voting. These included poll taxes and literacy tests. These methods were employed around the country to undermine the Civil War Amendments and set the stage for Jim Crow conditions and for the Civil Rights Movement.
7.4 – The NAACP
The NAACP, which was founded in 1909, advocates for full civil liberties and an end to racial discrimination and violence.
7.4.1 – Organizing for Equality: The NAACP
At the beginning of the 1900s the conditions for people of color, and particularly Black people in the US were incredibly unequal. Most Black people in the US were descendants of people who had lived in slavery in the US, and particularly in the South they experienced legal segregation, limitations on civil rights and liberties, and high rates of violence including lynching. During this period several groups began organizing, particularly around defending rights won under the thirteenth, fourteenth and fifteenth amendments. The NAACP (National Association for the Advancement of Colored People) was one of these groups.
7.4.2 – W.E.B. Du Bois and the Niagara Movement
The NAACP: W.E.B. Du Bois and Mary White Ovington were two of the founding officers of the NAACP.
W.E.B. Du Bois was a scholar and activist committed to full civil rights for all people. His worked extended beyond the US, and he was also a Pan-Africanist and supported anti-colonial actions in Africa and Asia.
In 1905 Du Bois along with William Monroe Trotter convened the first meeting of the Niagara Movement in Niagara Falls in Ontario. This group of Black activists and scholars called for full civil liberties and an end to racial discrimination. Their approach contrasted with other groups at the time calling for more gradual reform.
7.4.3 – The NAACP
In 1909 the NAACP formed, the fist call for a meeting was send out by a group of white liberals appalled by the continued violence committed against Black people in the US. W.E.B. Du Bois was one of a small group of Black participants in the first meeting, and his focus on defending the rights granted in the thirteenth, fourteenth and fifteenth amendments and eliminate race prejudice were adopted by the group.
The NAACP focused on recruiting members and local organizing. Branch offices were established in cities such as Washington DC, Kansas City MO, Detroit MI, and Boston MA. by 1919 they had tens of thousands of members and hundreds of local chapters.
In the early years the NAACP campaigned vigorously against lynching, voter suppression laws, for education rights, and blocked the nomination of a segregationist Supreme Court Judge. During the great depression the NAACP moved to organizing around the disproportionate impact of the depression on Black workers, and worked with willing unions to help secure jobs.
7.5 – Litigating for Equality after World War II
Post-WWI civil rights were expanded through court rulings such as Brown v. Board of Education (1954), which helped integrate public schools.
7.5.1 – Introduction
The period after World War II saw a great expansion in civil rights. This was achieved through a diversity of tactics including ongoing litigation.
The best know case from this period is Brown v. Board of Education (1954), a Supreme Court case in which justices unanimously decided to reverse the principle of separate but equal. The decision led to the legal integration of public schools.
Brown v. Board of Education was a collection of cases that had been filed on the issue of school segregation from Delaware, Kansas, South Carolina and Washington DC. Each case was brought forward through NAACP local chapters. In each case except for Delaware, local courts had upheld the legality of segregation. The states represented a diversity of situations ranging from required school segregation to optional school segregation.
7.5.2 – Segregation as Unconstitutional
Rather than focusing on whether or not segregated schools were equal, the Supreme Court ruling focused on the question of whether a doctrine of separate could ever be said to be equal. The judges ‘ ruling hinged on an interpretation that took separate as unconstitutional particularly because “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn.”
7.5.3 – School Integration and Resistance
Anti-Integration Protest: A 1959 rally in Little Rock AK protests the integration of the high school.
Brown v. Board of Education paved the way for integration in schools and other spheres of life, but not everyone supported this decision. Many white people in southern states protested integration, and legislators thought up creative ways to get around the ruling. This case was just one step on the road to providing full civil liberties for all people living in the United States.
8 – The Civil Rights Movement
8.1 – Separate but Equal
Separate but equal was a legal doctrine in American constitutional law that justified systems of segregation.
Separate but equal was a legal doctrine in American constitutional law that justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race on the condition that the quality of each group’s public facilities was to remain equal.
Segregation: A store catering to “whites only” under the separate but equal doctrine.
After the end of Reconstruction in 1877, former slave-holding states enacted various laws to undermine the equal treatment of African Americans, although the 14th Amendment, as well as federal Civil Rights laws enacted after the Civil War, were meant to guarantee such treatment. Southern states contended that the requirement of equality could be met in a manner that kept the races separate. Furthermore, the state and federal courts tended to reject the pleas by African Americans that their 14th Amendment rights had been violated, arguing that the 14th amendment applied only to federal, not state, citizenship.
The doctrine of “separate but equal” was legitimized in the 1896 Supreme Court case, Plessy v. Ferguson. Homer Plessy, who was of mixed ancestry, claimed that his constitutional rights had been violated when he was forced to move to a “colored’s only car” while riding a train. Nonetheless, the Supreme Court ruling “[required] railway companies carrying passengers in their coaches in that State to provide equal, but separate, accommodations for the white and colored races…,” establishing the actual term “separate but equal” in the process. After this ruling, not only was “separate but equal” applied to railroad cars, but also schools, voting rights and drinking fountains. Segregated schools were created for students, as long as they followed “separate but equal”.
Although the Constitutional doctrine required equality, the facilities and social services offered to African-Americans were almost always of lower quality than those offered to white Americans. For example, many African-American schools received less public funding per student than nearby white schools. In Texas, the state established a state-funded law school for white students without any law school for black students.
The repeal of such laws establishing racial segregation, generally known as Jim Crow laws, was a key focus of the Civil Rights Movement prior to 1954. The doctrine of “separate but equal” was eventually overturned by the Linda Brown v. Board of Education Supreme Court Case in 1954.
8.2 – Brown v. Board of Education and School Integration
Brown v. Board of Education was a Supreme Court case which declared racial segregation in public schools unconstitutional.
The Warren Court: The members of the Warren Court that unanimously agreed on Brown v. Board of Education.
Brown v. Board of Education was a landmark U.S. Supreme Court case in which the Court declared that state laws establishing separate public schools for black and white students were unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 that allowed state-sponsored segregation. Handed down on May 17, 1954, the Court’s unanimous (9–0) decision stated that “separate educational facilities are inherently unequal. ” As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. This ruling paved the way for further racial integration and was a major victory of the civil rights movement.
In 1951, a class action suit was filed against the Board of Education of Topeka, Kansas in the U.S. District Court for the District of Kansas. The plaintiffs were 13 Topeka parents who, on behalf of their 20 children, called for the school district to reverse its policy of racial segregation. The plaintiffs argued that systematic racial segregation, while seeming to provide separate but equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. The lead plaintiff was Oliver L. Brown, whose daughter Linda had to walk six blocks to her school bus stop to ride to Monroe Elementary, her segregated black school one mile away, while Sumner Elementary, a white school, was only seven blocks from her house.
The District Court ruled in favor of the Board of Education, citing the U.S. Supreme Court precedent set in Plessy v. Ferguson, and the case moved to the Supreme Court. Chief Justice Earl Warren convened a meeting of the justices and presented to them with the argument that the only reason to sustain segregation was an honest belief in the inferiority of African-American citizens. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive southern resistance. Warren drafted the basic opinion and kept circulating and revising it until the opinion was endorsed by all the members of the Court.
Eventually, the key decision of the Court was that even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was socially and psychologically harmful to black students and, therefore, unconstitutional. This aspect was vital because the question was not whether the schools were “equal,” which under Plessy they nominally should have been, but whether the doctrine of separate was constitutional.
8.3 – Jim Crow and the Civil Rights Movement
The Civil Rights Movement aimed to outlaw racial discrimination against black Americans, particularly in the South.
The March on Washington: The March on Washington, a key event in the U.S. Civil Rights Movement.
The African American Civil Rights Movement refers to the social movements in the United States aimed at outlawing racial discrimination against black Americans and restoring voting rights to them. The Civil Rights Movement generally lasted from 1955 to 1968 and was particularly focused in the American South.
After the period of Reconstruction, the American South maintained an entrenched system of overt, state-sanctioned racial discrimination and oppression. Characteristics of this system, also known as “Jim Crow,” included racial segregation, voter disenfranchisement, economic exploitation, and organized violence against the black community. African Americans and other racial minorities resisted this regime in numerous ways and sought better opportunities through lawsuits, new organizations (such as the National Association for the Advancement of Colored People), political redress, and labor organizing.
After the Brown v. Board of Education decision in 1954, civil rights organization broadened their strategy to emphasize “direct action”—primarily boycotts, sit-ins, Freedom Rides, marches and similar tactics that relied on mass mobilization, nonviolent resistance and civil disobedience. This mass action approach typified the movement from 1960 to 1968. Churches, local grassroots organizations, fraternal societies, and black-owned businesses mobilized volunteers to participate in broad-based actions. This was a more direct and potentially more rapid means of orchestrating change than the traditional approach of mounting court challenges.
Key events in the Civil Rights Movement included: the Montgomery Bus Boycott (1955-1956), which began when Rosa Parks, a NAACP secretary, was arrested when she refused to cede her public bus seat to a white passenger; the desegregation of Little Rock Central High School (1957); the Selma to Montgomery marches, also known as Bloody Sunday and the two marches that followed, were marches and protests held in 1965 that marked the political and emotional peak of the American civil rights movement which sought to secure voting rights for African-Americans. All three were attempts to march from Selma to Montgomery where the Alabama capitol is located. The student sit-ins protesting segregated lunch counters (1960); the Freedom Rides (1961) in which activists attempted to integrate bus terminals, restrooms, and water fountains; voter registration drives; and the March on Washington for Jobs and Freedom (1963), in which civil rights leader, Martin Luther King, Jr. delivered his famous “I Have a Dream” speech.
8.4 – The Civil Rights Acts
The Civil Rights Act of 1964 outlawed forms of discrimination against women and minorities.
The Civil Rights Act of 1964 was a landmark piece of United States legislation outlawing major forms of discrimination against women as well as racial, ethnic, national and religious minorities. It ended unequal application of voter registration requirements and racial discrimination in schools, at the workplace, and by facilities that served the general public.
President John F. Kennedy: President John F. Kennedy, who called for the passage of a civil rights bill
In a civil rights speech on June 11, 1963, President John F. Kennedy called for passage of the bill, which he said would “give all Americans the right to be served in facilities which are open to the public – hotels, restaurants, theaters, retail stores, and similar establishments,” as well as “greater protection for the right to vote. ” Emulating the Civil Rights Act of 1875, which established equal treatment in public accommodations, Kennedy’s civil rights bill included provisions to ban discrimination in public accommodations. It also enabled the U.S. Attorney General to join in lawsuits against state governments which operated segregated school systems. After Kennedy’s assassination in November 1963, President Lyndon Johnson utilized his experience in legislative politics to garner support for the bill, which was passed in July 1964.
The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that prohibits discrimination in voting. Echoing the language of the 15th Amendment, the Act prohibits states and local governments from imposing any “voting qualification or prerequisite to voting, or standard, practice, or procedure… to deny or abridge the right of any citizen of the United States to vote on account of race or color. ” Specifically, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law.The Civil Rights Act was followed by the Voting Rights Act, signed into law by President Johnson in 1965. The Voting Rights Act outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African-Americans. Specifically, the Act outlawed the practice of requiring otherwise qualified voters to pass literary tests to register to vote. This was a principal means by which Southern states had prevented African-Americans from exercising the franchise.
The Act established extensive federal oversight of elections administration, providing that states and local governments with a history of discriminatory voting practices could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. The Act allowed “poll watchers” to ensure state compliance with federal legislation. It also eliminated literacy tests as a precondition for voting, effectively removing barriers to African American voter registration. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had used a “device” to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.
8.5 – Continuing Challenges in Race Relations in the U.S.
The Civil Rights Movement influenced racial integration, but tensions with affirmative action and racism still affect racial relations.
8.5.1 – Background
Though much progress has been made in establishing racial equality since the time of the Civil Rights Movement, there still exist numerous challenges in this area. Two issues relating to race that remain controversial are the debates surrounding affirmative action and racial profiling.
President Lyndon B. Johnson: Lyndon B. Johnson, who successfully utilized negative political advertising in the famous “Daisy ad” during the 1964 election
Affirmative action refers to policies that take factors including race, color, religion, gender, sexual orientation, or national origin into consideration in order to benefit underrepresented groups in areas of employment, education, and business. In 1965, President Lyndon Johnson signed Executive order 11246, affirming the Federal Government ‘s commitment “to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency.”
Richard Nixon, 37th President of the United States: Richard Nixon was elected president in 1968, and resigned in 1974 amidst the Watergate scandal. His presidency included foreign policy achievements, most notably improved relations with China.
After Richard Nixon’s inauguration in 1969, he appointed Vice President Agnew to lead a task force, which worked with local leaders—both white and black—to determine how to integrate local schools. Agnew had little interest in the work, and Labor Secretary George Shultz did most of it. Federal aid was available, and a meeting with President Nixon was a possible reward for compliant committees. By September 1970, fewer than ten percent of black children were attending segregated schools. By 1971, however, tensions over desegregation surfaced in Northern cities, with angry protests over the busing of children to schools outside their neighborhood to achieve racial balance. Nixon opposed busing personally but enforced court orders requiring its use.
In addition to desegregating public schools, Nixon implemented the Philadelphia Plan in 1970—the first significant federal affirmative action program. He also endorsed the Equal Rights Amendment after it passed both houses of Congress in 1972 and went to the states for ratification. Nixon had campaigned as an ERA supporter in 1968. However, feminists criticized him for doing little to help the ERA or their cause after his election even though he appointed more women to administration positions than Lyndon Johnson had.
8.5.2 – Racial Profiling
Racial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to engage in enforcement (e.g. make a traffic stop or arrest). The practice is controversial and illegal in many jurisdictions. Racial profiling is challenged at a federal level by both the 4th Amendment of the U.S. Constitution, which guarantees the right to be safe from search and seizure without a warrant (which is to be issued “upon probable cause”); and the 14th Amendment, which requires that all citizens be treated equally under the law. Nonetheless, racial profiling is sometimes practiced in African-American, Hispanic, and Muslim communities within the U.S.
8.5.3 – Today’s Controversy of Affirmative Action
The controversy surrounding affirmative action’s effectiveness is based on the idea of class inequality. Opponents of racial affirmative action argues that the program actually benefits middle and upper class African Americans and Hispanic Americans at the expense of lower-income European Americans and Asian Americans. This argument supports the idea of solely class-based affirmative action. America’s poor is disproportionately made up of people of color, so class-based affirmative action would disproportionately help people of color. This would eliminate the need for race-based affirmative action as well as reducing any disproportionate benefits for middle and upper class people of color.
Supporters of affirmative action often cite their goals as
- bridging inequalities in employment and pay;
- increasing access to education;
- enriching state, institutional, and professional leadership with the full spectrum of society;
- redressing apparent past wrongs, harms, or hindrances.
Opponents emphasize that affirmative action is counterproductive. They believe that choosing people based on their social group instead of solely their qualifications has the effect of devaluing their accomplishments; opponents also claim that affirmative action is a form of “reverse discrimination” and may increase racial tension.
9 – Women’s Rights
The women’s rights movement refers to political struggles to achieve rights claimed for women and girls of many societies worldwide.
9.1 – Introduction
9.1.1 – Background and Historical Precedents
Second-wave feminism is a period of feminist activity. In the United States, second-wave feminism, initially called the Women’s Liberation Movement, began during the early 1960s and lasted through the late 1990s. It was a worldwide movement that was strong in Europe and parts of Asia, such as Turkey and Israel, where it began in the 1980s, and it began at other times in other countries.
Women’s Liberation March: Women’s Liberation march from Farrugut Square to Layfette park
Whereas first-wave feminism focused mainly on suffrage and overturning legal obstacles to gender equality (i.e. voting rights, property rights), second-wave feminism broadened the debate to a wide range of issues: sexuality, family, the workplace, reproductive rights, de facto inequalities, and official legal inequalities. At a time when mainstream women were making job gains in professions, the military, the media, and sports in large part because of second-wave feminist advocacy, second-wave feminism also focused on a battle against violence with proposals for marital rape laws, establishment of rape crisis and battered women’s shelters, and changes in custody and divorce law. Its major effort was trying to get the Equal Rights Amendment (ERA) added to the United States Constitution, an effort in which they were defeated by anti-feminists led by Phyllis Schlafly, who argued against the ERA, saying women would be drafted into the military.
Betty Friedan (1960): Betty Friedan, American feminist and writer, wrote the best selling book “The Feminist Mystique. ” This book is widely credited with having begun second-wave feminism in the United States.
Starting in the late 18th century, and throughout the 19th century, rights, as a concept and claim, gained increasing political, social and philosophical importance in Europe. Movements emerged which demanded freedom of religion, the abolition of slavery, rights for women, rights for those who did not own property and universal suffrage. In the late 18th century the question of women’s rights became central to political debates in both France and Britain. At the time some of the greatest thinkers of the Enlightenment, who defended democratic principles of equality and challenged notions that a privileged few should rule over the vast majority of the population, believed that these principles should be applied only to their own gender and their own race.
9.1.2 – Overview
The second wave of feminism in North America came as a delayed reaction against the renewed domesticity of women after World War II: the late 1940s post-war boom, which was an era characterized by an unprecedented economic growth, a baby boom, a move to family-oriented suburbs, and the ideal of companionate marriages. This life was clearly illustrated by the media of the time; for example, television shows such as “Father Knows Best” and “Leave It to Beaver” idealized domesticity.
In 1960, the Food and Drug Administration approved the combined oral contraceptive pill, which was made available in 1961. This made it easier for women to have careers without having to leave due to unexpectedly becoming pregnant. The administration of President Kennedy made women’s rights a key issue of the New Frontier, and named women (such as Esther Peterson) to many high-ranking posts in his administration.
In 1963 Betty Friedan (), influenced by Simone De Beauvoir’s book “The Second Sex,” wrote the bestselling book “The Feminine Mystique” in which she explicitly objected to the mainstream media image of women, stating that placing women at home limited their possibilities, and wasted talent and potential. The perfect nuclear family image depicted and strongly marketed at the time, she wrote, did not reflect happiness and was rather degrading for women. This book is widely credited with having begun second-wave feminism.
9.1.3 – Achievements
Among the most significant legal victories of the movement after the formation of the National Organization of Women (NOW) were: a 1967 Executive Order extending full Affirmative Action rights to women, Title IX and the Women’s Educational Equity Act (1972 and 1974, respectively, educational equality), Title X (1970, health and family planning), the Equal Credit Opportunity Act (1974), the Pregnancy Discrimination Act of 1978, the outlaw of marital rape, the legalization of no-fault divorce, a 1975 law requiring U.S. Military Academies to admit women, and many Supreme Court cases, perhaps most notably Reed v. Reed of 1971 and Roe v. Wade of 1973. However, the changing of social attitudes towards women is usually considered the greatest success of the women’s movement.
U.S. Public Opinion about Roe v. Wade: Graph showing public support for Roe v. Wade over the years
By the early 1980s, it was largely perceived that women had met their goals and succeeded in changing social attitudes towards gender roles, repealing oppressive laws that were based on sex, integrating “boys’ clubs” such as military academies, the United States Armed Forces, NASA, single-sex colleges, men’s clubs, and the Supreme Court, and by accomplishing the goal of making gender discrimination illegal. However, the movement did fail, in 1982, in adding the Equal Rights Amendment to the United States Constitution, coming up three states short of ratification.
9.2 – Gender Discrimination
9.2.1 – Introduction
Gender discrimination refers to prejudice or discrimination based on gender, as well as conditions that foster stereotypes of gender roles.
Gender discrimination, also known as sexism, refers to prejudice or discrimination based on sex and/or gender, as well as conditions or attitudes that foster stereotypes of social roles based on gender. Sexist mindsets are frequently based on beliefs in traditional stereotypes of gender roles, and is thus built into many societal institutions.
9.2.2 – Gender Stereotypes
Gender stereotypes: A poster depicting gender stereotypes about women drivers from the 1950s
Gender stereotypes are widely held beliefs about the characteristics and behavior of women and men. Many of the stereotypes that result in gender discrimination are not only descriptive, but also prescriptive beliefs about how men and women “should” behave. For example, women who are considered to be too assertive or men who lack physical strength are often criticized and historically faced societal backlash. They can also facilitate or impede intellectual performance, such as the stereotype threat that lower women’s performance on mathematics tests, due to the stereotype that women have inferior quantitative skills compared to men’s, or when the same stereotype leads men to assess their own task ability higher than women performing at the same level.
9.2.3 – Examples of Gender Discrimination
There are several prominent ways in which gender discrimination continues to play a role in modern society. Occupational sexism refers to discriminatory practices, statements, and/or actions based on a person’s gender which occur in a place of employment. Wage discrimination, the “glass ceiling” (in which gender is perceived to be a barrier to professional advancement), and sexual harassment in the workplace are all examples of occupational sexism. Violence against women, including sexual assault, domestic violence, and sexual slavery, remains a serious problem around the world. Many also argue that the objectification of women, such as in pornography, also constitutes a form of gender discrimination.
9.3 – The Women’s Suffrage Movement
The Women’s Suffrage Movement refers to social movements around the world dedicated to achieving voting rights for women.
9.3.1 – Background
The Women’s Suffrage Movement refers to social movements around the world dedicated to achieving voting rights for women. Within the United States, the first major call for women’s suffrage took place in 1848 at the Seneca Falls Convention. After the Civil War agitation for the cause resumed. In 1869, the Fifteenth Amendment of the Constitution which gave black men the right to vote, split the movement. Campaigners such as Susan B. Anthony and Elizabeth Cady Stanton refused to endorse the amendment, as it did not give women the right to vote. Others, such as Lucy Stone and Julia Ward Howe, argued that if black men were enfranchised, it would help women achieve their goal.
The conflict caused two organizations to emerge, the National Woman Suffrage Association, which campaigned for women’s suffrage at a federal level and for married women to be given property rights. As well as the American Woman Suffrage Organization, which aimed to secure women’s suffrage through state legislation. After 1900, the groups made a new argument to the effect that women’s superior characteristics, especially purity, made their votes essential to promoting the reforms of the Progressive Era, particularly Prohibition, and exposing political corruption.
9.3.2 – Women’s Suffrage in America
Women’s Suffrage: Supporters of women’s suffrage at a political rally
World War I provided the final push for women’s suffrage in America. When President Woodrow Wilson announced that the war was being fought for democracy, supporters of women’s suffrage protested that disenfranchising women prevented the United States from being a true democracy. In 1918, after years of opposition, Wilson changed his position to advocate for women’s suffrage as a war measure.
In June 1919, the Nineteenth Amendment to the Constitution, giving women the right to vote, was brought before the Senate, and after a long discussion it was passed, with 56 ayes and 25 nays. It would take until August 1920 for enough state legislatures to ratify the amendment, thus making it the law throughout the United States.
In addition to their strategy to obtain full suffrage through a constitutional amendment, reformers pursued state-by-state campaigns to build support for, or to win, residence-based state suffrage. Towns, counties, states, and territories granted suffrage, in full or in part, throughout the 19th and early 20th century. As women received the right to vote, they began running for, and being elected to, public office. They gained positions as school board members, county clerks, state legislators, judges, and eventually as Members of Congress.
9.4 – The Feminist Movement
The feminist movement refers to a series of campaigns for cultural, political, economic, and social equality for women.
9.4.1 – Introduction
The feminist movement (also known as the women’s movement or women’s liberation) refers to a series of campaigns for reforms on issues, such as women’s suffrage, reproductive rights, domestic violence, maternity leave, equal pay in the workplace, maternity leave, sexual harassment, and sexual violence. The movement’s priorities vary among nations and communities.
Women constitute a majority of the population and of the electorate in the United States, but they have never spoken with a unified voice for civil rights, nor have they received the same degree of protection as racial and ethnic minorities.
9.4.2 – History of the Movement
The history of feminist movements has been divided into three “waves” by feminist scholars. The first wave refers to the feminist movement of the nineteenth through early twentieth centuries, which focused mainly on women’s suffrage.
Feminist Suffrage Parade in New York City, May 6, 1912.: First-wave feminists marching for women’s suffrage. The first wave of women’s feminism focused on suffrage, while subsequent feminist efforts have expanded to focus on equal pay, reproductive rights, sexual harassment, and others.
The second wave, generally taking place from the early 1960s to the late 1980s, was concerned with cultural and political inequalities, which feminists perceived as being inextricably linked. The movement encouraged women to understand aspects of their own personal lives as deeply politicized and reflective of a sexist structure of power.
The third wave, starting in the 1990s, rose in response to the perceived failures of the second wave feminism. It seeks to challenge or avoid what it deems the second wave’s “essentialist” definitions of femininity, which often assumed a universal female identity and over-emphasized the experiences of upper-middle-class white women.
One of the most important organizations that formed out of the women’s rights movement is the National Organization for Women (NOW). Established in 1966 and currently the largest feminist organization in the United States, NOW works to secure political, professional, and educational equality for women. In 1972, NOW and other women activist groups fought to ratify the Equal Rights Amendment (ERA) to the Constitution, which affirmed that women and men have equal rights under the law. Although passage failed, the women’s rights movement has made significant inroads in reproductive rights, sexual harassment law, pay discrimination, and equality of women’s sports programs in schools.
In 1980, the Equal Employment Opportunity Commission defined sexual harassment as unwelcome sexual advances or sexual conduct, verbal or physical, that interferes with a person’s performance or creates a hostile working environment. Such discrimination on the basis of sex is barred in the workplace by the Civil Rights Act of 1964 and in colleges and universities that receive federal funds by Title IX. In a series of decisions, the Supreme Court has ruled that employers are responsible for maintaining a harassment-free workplace. Legislation such as this has helped to protect the rights of women in the workplace and at schools. The proposed ERA did have unintended consequences. For example, stay-at-home women did not agreed necessarily with women who worked steady schedules.
9.4.3 – The Status of Women in the United States
As a whole, the feminist movement has brought changes to U.S. society, including women’s suffrage, the right to initiate divorce proceedings and “no fault” divorce, the right of women to make individual decisions regarding pregnancy (including access to contraceptives and abortion), and the right to own property. It has also led to increased employment opportunities for women at more equitable wages, as well as broad access to university educations. The feminist movement also helped to transform family structures as a result of these increased rights, in that gender roles and the division of labor within households have gradually become more flexible.
9.5 – Marxist Feminism
Rosemary Hennessy and Chrys Ingraham say that materialist feminisms grew out of Western Marxist thought and have inspired a number of different (but overlapping) movements, all of which are involved in a critique of capitalism and are focussed on ideology ‘s relationship to women. Marxist feminism argues that capitalism is the root cause of women’s oppression, and that discrimination against women in domestic life and employment is an effect of capitalist ideologies. Socialist feminism distinguishes itself from Marxist feminism by arguing that women’s liberation can only be achieved by working to end both the economic and cultural sources of women’s oppression. Anarcha-feminists believe that class struggle and anarchy against the state.
Despite this, many American women achieved many political firsts in the 2000s. In 2007, Nancy Pelosi became the first female Speaker of the House of Representatives. In 2008, Democratic presidential candidate Hillary Clinton became the first woman to win a presidential primary, winning the New Hampshire Democratic primary. In 2008, Alaska governor Sarah Palin became the first woman nominated for Vice President by the Republican Party. In 2009 and 2010, respectively, Sonia Sotomayor and Elena Kagan were confirmed as Supreme Court Associate Justices, making them the third and fourth female justices.
9.6 – Women in the Workplace
Women’s participation in the workforce has been a relatively recent phenomenon and is still associated with many continuing challenges.
Gender pay gap: A chart depicting women’s earnings in different industries as a percentage of men’s earnings
Women’s participation in the workforce has been a relatively recent phenomenon. Until modern times, legal and cultural practices, combined with the inertia of longstanding religious and educational conventions, restricted women’s entry and participation in the workforce.
Particular barriers to equal participation in the workplace included a lack of access to educational opportunities; prohibitions or restrictions on members of a particular gender entering a field or studying a field; discrimination within fields, including wage, management, and prestige hierarchies; and the expectation that mothers, rather than fathers, should be the primary childcare providers.
Within the United States, World War I and World War II provided many new opportunities for women to participate in the workplace, including jobs as secretaries, salespeople, factory workers. Beginning in the 1970s, women began attending colleges and graduate schools in large numbers and entering professions like law, medicine, and business. Many scholars attribute this trend to the advent of the birth control pill, which allowed women to postpone pregnancy and marriage and focus instead on their education and careers. This transformation of women’s expectations had a profound effect on their conception of their own identity and still continues on today.
Challenges that remain for women in the workplace include the gender pay gap, the difference between women’s and men’s earnings due to lifestyle choices and explicit discrimination; the “glass ceiling”, which prevents women from reaching the upper echelons within their companies; sexism and sexual harassment; and network discrimination, wherein recruiters for high-status jobs are generally men who hire other men.
9.7 – Women in American Politics
In recent decades, women have served in more political posts and organizations, but they remain underrepresented in comparison to men.
9.7.1 – Background
As women campaigned for and eventually received the right to vote, they began running for, and being elected to, public office. They gained positions as school board members, county clerks, state legislators, judges and, eventually, shortly before ratification of the Nineteenth Amendment, as members of Congress. In recent decades, women have been increasingly involved in American politics, serving as mayors, governors, state legislators, members of Congress, members of the U.S. Cabinet, and Supreme Court justices.
As of January 2011, 35 women have served as governors of U.S. states, with six women currently serving. The first elected female governor was Nellie Tayloe Ross of Wyoming, who was sworn in on November 4, 1925. The first female governor elected without being the wife or widow of a past state governor was Ella T. Grasso of Connecticut, sworn in on January 8, 1975.
9.7.2 – Women in Government Posts
The first woman elected to Congress was Jeannette Rankin, a Republican from Montana who took office in 1917. Women have been elected to the House of Representatives from 44 of the 50 states. Thirty-nine women have served altogether in the Senate, with Hattie Caraway of Arkansas became the first woman to win election to that legislative body in 1932. There are currently 17 female members of the Senate, 12 Democrats and 5 Republicans.
Twenty-five women have served as U.S. Cabinet officials. The first woman to hold a Cabinet position was Frances Perkins, who was appointed Secretary of Labor by President Franklin D. Roosevelt in 1933. Other prominent female Cabinet members include: Janet Reno, who served as the first female attorney general under President Bill Clinton; Madeline Albright, who served as the first female secretary of state under President Clinton; Condoleezza Rice, Secretary of State under President George W. Bush; and Hillary Rodham Clinton, former First Lady, Senator from New York, Secretary of State under Barack Obama, and the first woman to be nominated for president by a major American political party.
The first woman to serve as a justice in the U.S. Supreme Court was Sandra Day O’Connor, who was appointed by President Ronald Reagan in 1981. Three women serve in the current Supreme Court: Ruth Bader Ginsburg, appointed by President Clinton; Sonia Sotomayor, appointed by President Obama; and Elena Kagan, also appointed by President Obama.
9.7.3 – African-American Women in Politics
African-American women have been involved in American political issues and advocating for the community since the American Civil War era through organizations, clubs, community-based social services, and advocacy. Issues that deal with identity, racism, and sexism have been important to African-American women in the political dialogue.
Though women obtained the right to vote in the United States in 1920, many women of color still ran into obstacles. Some faced tests that required them to interpret the Constitution in order to vote. Others were threatened with physical violence, false charges, and other extreme danger to prevent voting. Due to these tactics and others that marginalized people of color, the Voting Rights Act of 1965 was put into place. It outlawed any discriminatory acts to prevent people from voting.
9.7.4 – Women and Black Power
Despite the fact that elements of the Black Power Movement had some views centered on misogyny, African-American women quickly found a voice in the movement. Women held leadership positions, ran community-based programs, and fought misogyny. Other women also contributed to the grass-roots movement through community service. “In the age of rights, antipoverty, and power campaigns, black women in community-based and often women-centered organizations, like their female counterparts in nationally known organizations, harnessed and engendered Black Power through their speech and iconography as participants of tenant councils, welfare rights groups, and a black female religious order.”
9.7.5 – Political Representation
African-American women have been underrepresented in politics within the United States, but numbers continue to increase. According to the Center for American Women and Politics at Rutgers University, currently 13 African-American women serve in the 112th Congress, with 239 state legislators serving nationwide. The paths to public office for women in the African-American community have differed from men and other groups, such as women’s organizations, rallies, and fundraisers.
Shirley Chisholm: Shirley Chisholm was a member of the U.S. House of Representatives representing New York’s twelfth Congressional District for seven terms from 1969 to 1983.
A number of organizations supporting African-American women have historically played an important role in politics. The National Association of Colored Women, founded in 1896 by Josephine St. Pierre Ruffin and Mary Church Terrell, is one of the oldest political groups created for and by African-American women. Among its objectives were equal rights, eliminating lynching, and defeating Jim Crow laws. Another organization, the National Council of Negro Women, was founded in 1935 by civil rights activist Mary McLeod Bethune and was more involved in African-American politics with the aim to improve the quality of life for African-American women and families.
10 – Civil Rights and Other Specific Groups
10.1 – Civil Rights of Latinos
Policies regarding immigration, language, and voting are modern-day civil rights issues that affect Latinos living in the United States.
10.1.1 – Introduction
“Latino” is a term used primarily in the United States to designate people of Latin American heritage or descent. Often, the term is treated as a synonym for Hispanic, although the latter only includes persons of Spanish-speaking origin. Latino is generally used more broadly to include non-Spanish speaking persons of Latin American descent, such as Brazilians. The U.S. Census considers Latino persons to share an ethnic group, not a race. Therefore, on the census individuals of any race can indicate that they are Hispanic or Latino.
10.1.2 – Civil Rights and Immigration
The United States has long been a nation with a large immigrant population, but immigration policies have varied throughout the country’s history. In the earliest years, the largest immigrant group to North America consisted of European men. Immigration (not including the arrival of African and Caribbean slaves) proceeded at a relatively low rate until the mid-19th century. By the mid-1800’s, poor economic conditions in some European nations and a surge in industrial opportunities in the U.S. contributed to a dramatic rise in the number of immigrants entering the U.S. The wave of immigration in the latter half of the 1800’s was dominated by the Irish and Germans, although other European ethnicities arrived in significant numbers. By the early 1900’s, vast numbers of immigrants were still arriving, but the demographics had changed. Increasingly large numbers of southern and eastern Europeans were arriving in the eastern United States, while many Chinese and Japanese immigrants were arriving on the West Coast. In response, the U.S. government passed immigration quota laws in the 1920’s which restricted the number of people who could enter the U.S. from any given country. In effect, the policy changes restricted immigration from southern and eastern Europe, Asia, and Central and South America.
The immigration policies of the 1920’s stood until the passage of the Immigration and Nationality Act of 1965, also known as the Hart-Cellar Act. By the 1960’s, immigration was seen as a civil rights issue. Critics of existing policy included President John F. Kennedy, who considered immigration quotas to be at odds with democratic principles. The Immigration and Nationality Act of 1965 was signed into law by President Lyndon B. Johnson. It removed national-origin quotas from immigration law. Instead, potential immigrants would be ranked based on skills, education, and family relationships. The Hart-Cellar Act opened the borders to populations that had been largely excluded from entry to the U.S. in earlier years, thus shifting the demographics of the country. Prior to 1965 the majority of immigrants in the U.S. were of European descent, but in the subsequent decades Latinos came to make up a majority of new immigrants.
The American Public by Ancestry, 2000: Especially in the southwest United States, people of Latino origin make up a significant proportion of United States residents.
Since the Civil Rights Era legislation that made Latino immigration possible, debates about immigration law have remained controversial. In particular, immigration from Mexico has surged since the late-1980’s. People of Mexican origin are now the largest foreign-born group in the United States. While many Mexican and Latino immigrants enter the country legally, particularly through family reunification policies, a substantial number do not have legal-immigrant status — an estimated 700,000 new immigrants per year. Some politicians have sought legislation to curb the flow of immigration from Latin America, including a proposals for increased deportation, building a wall along the U.S./Mexican border, and harsher enforcement of existing laws. Many other politicians and voters instead seek to facilitate the acquisition of legal citizenship for current residents.
Contemporary immigration policy is widely considered to be a civil rights issue that disproportionately affects Latinos. Enforcement and labor policies often violate the rights that are afforded to U.S. citizens. For example, many Latino immigrants are employed in unregulated workplaces, where employers do not pay minimum wage and do not abide by health and safety regulations. Children of immigrants may be denied access to education or coerced into labor that violates child labor laws. Moreover, for fear of deportation or prosecution, immigrants without legal status do not have legal recourse when they are victims of crimes or exploitation. Current policy proposals aimed at reducing these rights violations include legislation to grant legal status to all children born in the U.S. as well as proposals for foreign worker programs that would grant legal status to foreign born laborers. These proposals are highly controversial among the U.S. electorate and politicians.
10.1.3 – Language
Because the majority of foreign-born Latinos in the United States speak Spanish as a primary language, and many second-generation continue to speak Spanish in their households, controversies surrounding language are sometimes considered to be civil rights issues affecting Latinos. In recent decades, politicians have repeatedly proposed provisions to make English the official language of the U.S. These proposals have never passed — the U.S. does not have an official language. But, if such propositions were to become law, it would make it substantially more difficult for Spanish-speaking Americans to vote, attend school, and participate in other civic rights and duties. In many cases, critiques of proposals to make English the country’s official language accuse bill sponsors of attempting to disenfranchise Latinos — that is, of trying to reduce their political and economic power.
10.1.4 – Voting
Proposals to change voting laws in recent years have also been met by criticism that they would prevent American Latinos from participating in the country’s governance. In some states, redistricting, or the process of redrawing voting precinct boundaries, has divided voters to either segregate Latinos or prevent them from gaining a majority in historically white native-born American districts. Similarly, recent proposals to require more stringent identification at polling places is suspected of attempting to reduce Latino voter turnout because a disproportionate number of Latino citizens do not have drivers licenses or other forms of state-accepted ID.
10.2 – Civil Rights of Asian-Americans
Civil Rights controversies surrounding Asian Americans include early immigration restrictions and xenophobia during the Second World War.
10.2.1 – Introduction
According to U.S. Census data, Asian Americans comprise 4.8% of the U.S. population, with an additional 5.6% of the population having partial Asian ancestry. The Census defines Asian Americans as people who indicate their race as “Asian,” “Chinese,” “Filipino,” “Indian,” “Vietnamese,” “Korean,” “Japanese,” or “Other Asian. ” The group term Asian American has been in wide use since the 1960s, and was introduced as an alternative to the now antiquated and sometimes offensive term “Oriental. ”
Asian Americans are sometimes referred to as “the model minority” in the popular press. This label reflects the group’s educational and economic success in recent decades. As of 2008, Asian Americans have the highest educational attainment and median household income of any racial demographic in the United States. While the group’s nickname generally reflects positive trends, it can be seen as offensive or stereotypical when it is applied in a way that implies all Asian Americans are well-educated, wealthy, and demure.
10.2.2 – Immigration and Civil Rights
Japanese Americans Sent to Internment Camp: During the Second World War, Japanese Americans were forced to relocate to U.S. government administered internment camps on the baseless suspicion that they may plot anti-American activities.
Immigration policy has played a central role in legal Civil Rights issues affecting Asian Americans. People of Asian descent began immigrating to the United States in significant numbers in the late 1800s. As of 1868, U.S. policy encouraged Chinese immigration. Chinese men made up the majority of certain industrial labor pools, most notably the western railroad industry, by the end of the century. Chinese laborers were often subject to unregulated work conditions, which resulted in widespread health problems, work-related injury and death, and exploitation. Nonetheless, it was not until the end of the 19th century that Asian Americans began to face institutionalized barriers to immigration and citizenship.
In 1875, the Page Act expressly prohibited the entry of immigrants deemed “undesirable,” including Asian men seeking contract labor and Asian women who were suspected of engaging in prostitution. The Page Act was followed by the Chinese Exclusion Act of 1882, which suspended all Chinese immigration for ten years, and the Geary Act of 1892, which provided Chinese immigrants to carry resident papers and prevented them from full access to U.S. legal proceedings. By the 1920s, a nativist tendency in the U.S. had propelled the passage of national origins quota laws, which limited the number of immigration from any given country. These policies effectively curbed immigration for several decades.
A xenophobic stance known as the Yellow Peril is often associated with early 20th century attempts to limit Chinese immigration and to bar Chinese residents from gaining American citizenship. By the mid-20th century, however, the term became associated with xenophobia towards Japanese Americans. Spurred by Japan’s role in World War II, many Americans, including legislators, became hostile towards Japanese immigrants and people of Japanese descent living in the U.S. In what is now considered to be a major civil rights violation, thousands of Japanese Americans were held in internment camps during World War II. These camps were premised on the suspicion that Japanese Americans could be linked to Japanese war efforts, but in fact they held thousands of civilians without any legal grounds or evidence of criminal activity.
In 1965, at the tail end of the Civil Rights era, President Lyndon B. Johnson signed the Immigration and Nationality Act of 1965. This bill overturned laws setting immigration quotas, opening the borders to increasing immigration from Asia and Latin America. Asians began entering the U.S. in large numbers, often aided by legal provisions that facilitated the immigration of highly skilled individuals or individuals with family members in the United States. A demographic shift followed the passage of the act, and the Asian American population became increasingly well-educated and had growing access to material resources in the United States.
In the modern day, Asian Americans continue to comprise the second largest ethnic immigrant group, after Latinos. That said, Asian American immigrants have diverse ethnic backgrounds, with large immigrant populations arriving from China, Korea, and India, for example. There has been some controversy over illegal immigration from Asia, with some speculating that as much as 15% of the Asian American population is in the U.S. illegally. However, largely due to favorable stereotypes of Asian Americans, debates surrounding illegal immigration tend to focus on Latinos, who are more negatively stereotyped by native born Americans.
10.3 – Civil Rights of Native Americans
Historical policies of American expansion have infringed upon the rights of Native Americans and have lead to long-term inequality.
10.3.1 – Introduction
Native Americans are people of indigenous American descent, including indigenous peoples within the boundaries of the present-day United States. Native Americans are comprised of numerous, distinct ethnic groups, many of which continue as intact cultural and political entities. According to US Census data, 1.37% of Americans identify themselves as Native American.
10.3.2 – European Settlement and American Expansion
Prior to the 15th century, groups that were indigenous to the Americas lived in isolation from the rest of the world. Indigenous societies ranged widely in terms of geographic location, culture, and social structure, with distinct languages and governing systems. When Europeans colonized the Americas, massive numbers of Native Americans were killed through warfare and the spread of disease. Of those who survived, most were either forced off the land they inhabited or forced to convert to Christianity and work under Europeans. During the initial phases of American colonization, European policy generally forced Native Americans westward, where there was a low density of European settlement.
By the 1800s, however, the newly formed United States of America sought to expand its territory and strengthen its hold on the western portion of the continent. As settlers moved west, new conflicts with Native American populations ensued. In an attempt to confine Native Americans to limited territory, thus clearing the way for westward expansion, the U.S. government created a system of Indian reservations. Reservations were intended to reduce conflict between settlers and Indians without curbing American expansion, but they were controversial and largely unsuccessful from the start. On the one hand, settlers objected to large portions of land being given to indigenous populations, and on the other, Native Americans objected to having their movement restricted and their territory reduced. Moreover, Native Americans rejected the limited autonomy they were granted through the reservation system, as the reservations were administered by U.S. bureaucrats rather than tribal leaders.
10.3.3 – Native Americans in the Modern United States
Map of Indian Reservations in the U.S.: Beginning in the 19th century, the U.S. government attempted to reduce conflict and pave the way for territorial expansion by confining Native Americans to reservations, granting them a degree of sovereignty in exchange.
Today, there are still 310 Indian reservations in the U.S., but they remain controversial. Reservations have alcoholism, domestic abuse, sexual violence, poverty, and illiteracy rates that are among the highest in the country. Partly because of the reservation system, civil rights protections have often involved complex legal issues. Native Americans have allegedly been granted the right to self-determination, which has sometimes limited support on both sides for U.S. governmental protections.
Nonetheless, by 1968 the U.S. Congress passed the Indian Civil Rights Act, which gave tribal members protections from both the U.S. Government and from rights infringements by tribal leaders. Soon after, affirmative action policies began being applied to Native Americans, in an attempt to provide equal opportunity in employment, housing, and education. Despite these efforts, Native Americans still tend to have lower socioeconomic status and greater exposure to crime and abuse than other American groups.
10.4 – Civil Rights of People with Disabilities
Disabled Americans face limited access to public places and institutions that civil rights legislation seeks to address.
10.4.1 – Introduction
Disability is an umbrella term that includes impairments, activity limitations, and participation restrictions. Disabilities may be physical, cognitive, mental, sensory, emotional, developmental or some combination of these, and they may be present from birth or acquired later in a person’s lifetime. According to the World Health Organization, an impairment inhibits body function or structure; an activity limitation inhibits an individual’s ability to execute a task or action; and a participation restriction affects an individual’s ability to participate in life situations. Thus, disability is often complex, reflecting an interaction between features of a person’s body and of the society in which he or she lives.
10.4.2 – Civil Rights
Transportation Accessibility: Public transportation vehicles, such as train and bus systems, are required to be outfitted with ramps accessible to disabled persons.
Disabled persons face unique social challenges that may limit their participation in civic life. Notable issues include:
- Accessibility and safety measures in transportation, architecture, and the physical environment
- Equal opportunity in housing, employment, and education
- Protection from abuse, neglect, and the violation of patients’ rights
To address these concerns, a disability rights movement has introduced a range of legislation and law suits.
The disability rights movement became organized in the 1960s, concurrent with the African-American civil rights movement and feminist movement. Prior to the 1960s, individual disability groups had advocated for social reform; schools for the deaf and blind were organized as early as 1817, and the American Federation of the Physically Handicapped was formed in 1940 to advocate on behalf of people with physical limitations. But, it was not until the 1960s that a diverse range of disability groups became unified in pursuit of large scale advocacy. In the 1960s, the movement included such successful initiatives as the Community Mental Health Act, which provided funding for research about developmental disorders, and the Architectural Barriers Act, which required all federally owned or leased buildings to be accessible to disabled people.
Throughout the 1970s and 80s, the disability rights act gained increasing visibility and a number of policy successes, including increased accessibility of public places and increased resources for people with developmental disabilities. Perhaps the most sweeping success, however, came in 1990 with the passage of the Americans with Disabilities Act. The act provided comprehensive civil rights protections modeled after the Civil Rights Act. It mandated that local, state, and federal governments and programs be accessible to people with disabilities, that employers with more than 15 employees make “reasonable accommodations” for workers with disabilities and not discriminate against otherwise qualified workers on the basis of disability, and that public spaces such as restaurants and stores make “reasonable modifications” to ensure accessibility. The act also mandated the accessibility of public transportation, communication, and other publicly provided services.
10.5 – Civil Rights of the Elderly
The elderly, or senior citizens, are vulnerable to civil rights abuses due to a propensity for sickness, disability, and poverty.
10.5.1 – Introduction
The elderly, sometimes referred to as senior citizens in the United States, are a demographic group usually defined by being retired or over the retirement age (which is dependent on life expectancy changes). Due to demographic shifts, including increased life expectancy and high birth rates in the post-World War II era, the United States population has grown older in recent years. As of 1990, only 4% of Americans were over 65; by 2000, 12% were; and demographers estimate that by 2020, 17% will be in that age group.
10.5.2 – Civil Rights Issues Affecting the Elderly
Because of a propensity for illness, disability, and lack of employment, the elderly are faced with unique civil rights challenges. Government policies throughout the twentieth century were aimed at meeting the unique needs of elderly Americans. For example, President Franklin D. Roosevelt’s Social Security Act funded medical care for aging Americans. In 1965, President Lyndon B. Johnson signed the Older Americans Act (OAA) into law. This legislation specifically sought to provide equal opportunity for the enjoyment of adequate income in retirement, adequate health care, housing, long-term care, recreation, community services, freedom and self-determination, and protection against abuse, neglect, and exploitation. The OAA provides funding to states for the provision of services on the basis of the percentage of the population over the age of 60. Recipients of the OAA benefits are disproportionately poor, female, rural, and African American, as these elderly populations are particularly vulnerable.
Retirement Home: A large component of non-monetary compensation is retirement funding and similar benefits. Employers will often offer matching or retirement accounts for employees.
Additionally, in 1967, Congress passed the Age Discrimination in Employment Act. This law forbids employment discrimination against anyone who is at least 40 years old in the United States; the denial of benefits based on age; mandatory retirement; and prohibits statements of age preferences in job notices or advertisements. The law attempts to address company policies that force elderly employees out of work once they become eligible for government retirement benefits or due to prejudice against the elderly.
10.6 – LGBTQ Civil Rights
Lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) people have attained many civil protections, but are still subject to discrimination.
10.6.1 – Introduction
The LGBTQ rights movement refers to the efforts of individuals and organizations to improve the social and legal standing of lesbian, gay, bisexual, and transgender (LGBTQ) people. The Stonewall Riots of 1969 are often thought to mark the starting point of a worldwide LGBTQ rights movement. In fact, some gay and lesbian organizations were established earlier than 1969 and advocated for the improved social standing of LGBTQ people. Still, it was not until the second half of the twentieth century that LGBTQ advocates organized groups and demonstrations to improve the legal status of LGBTQ people.
Despite the long history of non-heterosexual sexual practices and non-conforming gender roles, the concept of lesbian, gay, bisexual, transgender, and queer/questioning (LGBTQ) rights did not become widely used until the second half of the twentieth century. In the early twentieth century in the United States, men and women engaged in homosexual practices and relationships but did not identify as “gay” or “lesbian. ” In New York City in the 1920s, for example, men met in particular social clubs and bars to find male sexual partners. The majority of these men were married and did not consider themselves to be homosexual. While they engaged in homosexual conduct, they generally did not advocate for the improved standing of homosexuals in society. Likewise, throughout the early 1900s, well-educated, unmarried women sometimes lived with long- term female partners. While these relationships were often intimate and resembled marriage, and were sometimes colloquially referred to as “Boston marriages,” the women in these partnerships were more often advocates for women’s rights than for homosexual rights and did not identify as lesbians. The origin of the term “Boston marriages” refer to two single women living together, independent of men. The term was originally coined in Henry James’ novel The Bostonians, which told the tale of an intimate companionship between two wealthy Boston women.
10.6.2 – The Stonewall Riots
By the 1950s “homophile organizations” comprised of self-identified homosexual men and women arose. Like earlier social clubs and bars, these homophile club meetings served as a place to meet romantic and sexual partners. But, unlike earlier meeting places, homophile clubs explicitly advocated for the improved social status of homosexual people. While homophile organizations made early explicit attempts to improve LGBTQ peoples’ status, it was not until The Stonewall Riots of 1969 that large numbers of LGBTQ advocates united to demand legal and social rights. Throughout the 1950s-60s LGBTQ people gathered in a small number of bars that welcomed them as customers. Police forces often kept track of which bars were frequented by homosexuals. Since homosexuality was still illegal under anti-sodomy laws, and LGBTQ people had no protections against discrimination, police raids on known gay bars were common.
10.6.3 – Don’t Ask Don’t Tell
“Don’t Ask, Don’t Tell” (DADT) was the official United States policy on gays serving in the military from December 21, 1993, to September 20, 2011. The policy prohibited military personnel from discriminating against or harassing closeted homosexual or bisexual service members or applicants, while barring openly gay, lesbian, or bisexual persons from military service.
The policy was introduced as a compromise measure in 1993 by President Bill Clinton who campaigned in 1992 on the promise to allow all citizens to serve in the military regardless of sexual orientation. In accordance with the December 21, 1993, Department of Defense Directive, it was legal policy that homosexuality was incompatible with military service and that persons who engaged in homosexual acts or stated that they are homosexual or bisexual were to be discharged. he “Don’t Ask” provision mandated that military or appointed officials will not ask about or require members to reveal their sexual orientation. The “Don’t Tell” stated that a member may be discharged for claiming to be a homosexual or bisexual or making a statement indicating a tendency towards or intent to engage in homosexual activities.
A congressional bill to repeal DADT was enacted in December 2010, specifying that the policy would remain in place until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that repeal would not harm military readiness, followed by a 60-day waiting period. A July 6, 2011, ruling from a federal appeals court barred further enforcement of the U.S. military’s ban on openly gay service members. President Barack Obama, Secretary of Defense Leon Panetta, and Chairman of the Joint Chiefs of Staff Admiral Mike Mullen sent that certification to Congress on July 22, 2011, which set the end of DADT for September 20, 2011.
10.6.4 – Successes and Challenges
Gay Rights Demonstration: By the late 1960s, cities across the country held gay rights demonstrations to oppose discrimination on the basis of sexual orientation.
Since the late-1960s, LGBTQ activists have achieved many successes in the struggle to secure civil rights for LGBTQ people. Notably, in the past decade many states have legalized same-sex marriages and civil unions, the federal government overturned a ban on open LGBTQ military service members known as Don’t Ask, Don’t Tell (DADT), and most states have passed anti-discrimination laws that prevent discrimination in housing, employment, and education on the basis of sexual orientation. Although gay marriage is legal nationally, and no federal law protects LGBTQ people from discrimination.
10.7 – Civil Rights of Immigrants
Immigrants are vulnerable to civil rights violations, often due to low socioeconomic status, language barriers, or xenophobia.
10.7.1 – History
Immigration is the movement of people from one country to a country in which they are not native. In the United States, immigration has a long and complex history. It has long been a source of population growth as well as cultural, social, and political change.
In the first two centuries of the United States’ history, new immigrants were primarily north European, African, and Caribbean. Europeans immigrated primarily for economic opportunity, though some groups moved in pursuit of religious freedom or political asylum. Virtually all immigration from Africa and the Caribbean was the result of slavery — the movement of Africans and Caribbean Islanders from their native countries was entirely involuntary.
By the mid-1800s, increasing numbers of southern and eastern Europeans were immigrating to the United States. Many new groups were met with xenophobia. For example, in the second half of the 1800s, the Irish population in the U.S. exploded, and anti-Irish sentiment resulted in a plethora of discriminatory practices in housing, employment, and governance.
For much of the twentieth century, immigration was severely restricted by legislation with an isolationist philosophy. It was not until the passage of the Immigration and Nationality Act of 1965 that significant numbers of immigrants were once again allowed to enter the U.S. The Immigration and Nationality Act reversed laws that limited the number of immigrants who could enter from any given country, and instead put in place policies that encouraged the immigration of skilled workers and family members of U.S. citizens.
10.7.2 – Contemporary Debates
At present, the two largest immigrant groups in the United States are Latinos and Asian-Americans. While there is general political debate surrounding immigration, the bulk focuses on Latinos. This trend is largely due to the high socio-economic status of Asian immigrants — compared to other groups, Asian immigrants tend to be well-educated, and second-generation Asian-Americans immigrants tend to have high incomes and educational attainment. Latino immigrants, on the other hand, comprise a poorer, less-educated population. Consequently, they are more vulnerable to civil rights violations and lack of legal protection.
All immigrants are affected by certain civil rights issues, though Latinos may be more vulnerable than other groups. Central issues include the low enforcement of labor laws with regards to immigrant workers who are subject to dangerous or exploitative conditions; lack of due process in the courts for residents who entered the country illegally; debates about whether languages other than English should be taught in public schools and used in government documents; and debates about whether children who entered the country illegally can be prosecuted and deported. The Dream Act is an example of recently proposed legislation that would allow children born to parents who are illegally in the U.S. to attend public universities and become citizens.Although the Dream Act has not passed as federal legislation, a California version was passed in 2011. The California DREAM (Development, Relief, and Education for Alien Minors) Act is a package of California state laws that allow children who were brought into the US under the age of 16 without proper visas/immigration documentation who have attended school on a regular basis and otherwise meet in-state tuition and GPA requirements to apply for student financial aid benefits.
Mexican-American Rights March: Mexican-American immigrants have organized many political demonstrations to protest the exploitation of workers, discrimination in education and employment, and heavy-handed criminal justice enforcement against illegal immigrants.
While illegal immigration is the most controversial issue in American politics, immigrants who enter the country legally also face civil rights challenges. Discrimination in housing, employment, and education is legally prohibited, but continues to impact many immigrants, especially those who may be vulnerable due to a language barrier or their economic status.
11 – Affirmative Action
11.1 – The Supreme Court and the Burden of Proof
The Supreme Court is the highest court in the United States and has ultimate jurisdiction over all courts that involve a contest of federal law.
11.1.1 – The Supreme Court of the United States
The Supreme Court is the highest court in all of the United States. Any lower (more local) court can appeal a ruling to the Supreme Court. In other words, it has ultimate, but largely discretionary, appellate jurisdiction over all courts that involve a contest of federal law. The Court consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the United States Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment. The sitting court consists of Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. No replacement has been made to fill the open seat resulting from the death of justice Antonin Scalia on Feb. 13, 2016.
The Supreme Court is the head the judicial branch, one of the three branches of American government (the other two being the executive branch and legislative branch). Of the three, the Supreme Court is supposed to be politically independent, and thus not wed to either the Democratic or Republican Party. However, the nomination process itself essentially ensures that some partisanship, or allegiance to a political party, appears on the Court. A partisan president nominates a justice and a partisan Senate must confirm a justice. Justices are thus categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Though explicitly not for political motivations, judicial conservatives tend to confirm Republican agendas while judicial liberals tend to support Democratic aims. Ideally, their legal holdings are independent of their political views, though the degree to which this is true in practice is highly contested. The current court tends to lean conservatively in its opinions.
The Supreme Court decides which cases it would like to hear. Allowing a case to come before the court is called granting a writ of certiorari or granting cert. But for a small set of limited exceptions, the Court only hears cases that have already been reviewed by a lower court, meaning that the Supreme Court is a court of appeal. The party that lost the case in the lower court is called the petitioner and the party that won in lower court is called the respondent. The names of all of the cases that come before the court are structured as Petitioner v. Respondent, regardless of which party brought suit in the lower court. After granting cert, lawyers for each party will submit briefs, or written legal arguments, about the issues for the Court to read before oral arguments, or the time when a lawyer from each side will argue his case before all of the justices. After oral arguments, the justices will meet to discuss the case and then issue an opinion, or written statement of their findings, weeks or months later.
Not all justices have to agree on the finding of the court; in fact, they rarely unanimously agree. Instead, the justices will vote on the issues before them and the majority vote will constitute the legal opinion and law of the United States. Because of this voting process, you will frequently see the score for the vote (justices for and against). For example, in the case of Roe v. Wade (1973), the case that established federal abortion law in some instances of pregnancy became law by a vote of 7-2. The opinion will describe the justices’ reasons for voting as they did. The part of the opinion that address the majority vote and the new law of the land is called the majority opinion, while the part of the opinion that describes the rationale for the minority voters is called the dissent. One justice can write an opinion to which other justices will sign, though justices will frequently write their own opinion. When a justice that voted with the majority writes his or her own opinion, it is called a concurrence. You will frequently find opinions that contain several concurrences and dissents.
11.2 – Referenda on Affirmative Action
Affirmative action measures, particularly those pertaining to higher education, have been politically controversial in the United States.
11.2.1 – Introduction
In the United States, affirmative action refers to two different institutional capacities: 1) the proactive integration of minorities in settings of higher education, possibly by the use of different admissions standards and 2) equal opportunity employment measures that federal contractors are legally required to adopt. Affirmative action measures, particularly those pertaining to higher education, have been politically controversial in the United States. Though the majority of legal discussions about affirmative action have pertained to law suits, many states have had referenda on the topic. A referendum is a direct vote in which an entire electorate (citizens of particular states, in these cases) is asked to either accept or reject a particular proposal.
11.2.2 – Major Affirmative Action Referenda in the United States
In California, Proposition 209 (the California Civil Rights Initiative) was passed in 1996 and amended the state constitution to prohibit state government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Proposition 209 was passed with 54% of the electorate approving of the initiative. The most controversial aspect of Proposition 209 was the element that applied to public education. Prior to the passage of the proposition, the University of California system had used mechanisms of affirmative action. Since the passage of Proposition 209, higher graduation rates have be been posted across all of the University of California, leading opponents of affirmative action to suggest a causal link between Proposition 209 and a better prepared student body. However, while minority graduation rates have risen, enrollment rates have decreased. Of the 4,422 student in UCLA’s class of 2006, only 100 (2.26%) were African American. Since the passage of Proposition 209, enrollment rates for African Americans and Latinos have declined significantly, while rates have increased for Asian Americans.
Protests of California’s Proposition 209: Hundreds of students protested Proposition 209 at the University of California – Berkeley.
Several other states were inspired by California’s referendum. In 1998, the state of Washington sought to prohibit racial and gender preferences by state and local government. The initiative passed with 58.22% of the vote, adding the following language to Washington’s laws: “The state shall not discriminate against, or grant preferential treatment to, or any individual group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
The Michigan Civil Rights Initiative (MCRI, or Proposition 2), was a ballot initiative that passed into Michigan Constitutional law by a 58% to 48% vote in 2006. The MCRI was legislation aimed at stopping the preferential treatment of minorities (by race, color, sex, or religion) in receiving admission to colleges, jobs, and other publicly funded institutions. However, the MCRI was overturned by the United States Court of Appeals for the Sixth Circuit in 2011. Bill Schutte, Attorney General for the State of Michigan, announced that he was appealing the Sixth Circuit’s decision, so the MCRI is in effect until the appeal is complete.
The Nebraska Civil Rights Initiative, or Initiative 424, was a 2008 ballot measure that proposed a constitutional amendment which would prohibit the state from discriminating against or granting preferential treatment to “any individual on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The measure, in effect, banned affirmative action at the state level. It passed with 58% of the vote.
11.3 – Controversies Surrounding Affirmative Action
Opponents have tested affirmative action programs politically and legally through referendums and lawsuits since the 1970s.
Since the 1970s, affirmative action programs, particularly those in higher education, have been tested politically and legally by its opponents. Proponents of affirmative action contend that affirmative action programs give minorities the same educational advantages and opportunities that should be afforded to all races and attempt to compensate for past institutional racism. Proponents further argue that affirmative action programs encourage the elimination of racism by demonstrating that people from all different backgrounds can succeed in educational and professional settings.
However, supporters of affirmative action have encountered opposition. Some opponents have tested the bases for affirmative action programs on the basis of class inequality. These opponents argue that the program actually benefits middle- and upper-class African and Hispanic Americans at the expense of lower-class European and Asian Americans. This argument supports the idea of solely-class based affirmative action or the idea that affirmative action programs should be instituted based on social class rather than race. Other opponents have tested affirmative action by arguing that these programs lower admission standards for educational and professional environments and stating that affirmative action is a form of reverse racism, by which Caucasians are disadvantaged in the same way that minorities were in the past.
Justice Clarence Thomas: Supreme Court Justice Clarence Thomas has argued that affirmative action programs disadvantage minority students because others think that they achieved success due to affirmative action rather than their own merits.
Opponents of affirmative action have tried to disassemble affirmative action programs. States such as California, Michigan, Washington, and Nebraska have held a referendums, turning the issue over to voters on a direct ballot measure. In all four of these states, voters demanded that state institutions, including public institutions of higher education, disband all programs that take race and ethnicity into account for admissions. Affirmative action programs have engendered lawsuits disputing their constitutionality. These suits are normally sought by Caucasian students who were not admitted to institutions of higher education while lower scoring minority students were admitted. The most famous of these cases include Regents of the University of California v. Bakke (1978), Hopwood v. Texas (1996), Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and Parents Involved in Community Schools v. Seattle School District No. 1 (2006). Each of these cases has more narrowly defined the instances in which public schools can factor race into account in admissions.
11.4 – Strict Scrutiny
The legal standard of strict scrutiny, the most stringent standard of judicial review, must be used in all court cases involving affirmative action.
Strict scrutiny is the most stringent standard of judicial review used in American courts. It is part of the hierarchy of standards that courts use to weigh the government ‘s interest against a constitutional right or principle. The other members of the hierarchy of standards are, at the lowest level, “rational basis review” and, at the intermediate level, “intermediate scrutiny.”
Strict Scrutiny: Courts must use strict scrutiny to evaluate affirmative action programs.
Strict scrutiny is the standard that is employed in litigating affirmative action cases. Strict scrutiny is applied by judges in these cases because they give preferential treatment to a class of citizens–racial minorities. Whether the treatment is justified or not is politically contentious, but the treatment is recognized as legally preferential. Because affirmative action programs do not treat citizens equally, the implementation of affirmative action programs must pass the strict scrutiny standard for the programs to be constitutional, or legal and in accordance with the law and principles outlined in the American Constitution.
Judges apply strict scrutiny tests when a case regarding affirmative action come before them. In other words, in order to determine the constitutionality of the contested program, the judge must determine whether or not the program meets the standards of a strict scrutiny test. To meet these standards, the law or program must satisfy three tests:
- The program must be justified by a compelling governmental interest. This concept refers to something that is necessary or crucial for the functioning of the state, rather than just something that the state wants. An example of a compelling governmental interest would be national security. Whether or not the state has a compelling governmental interest in the incorporation of minority students in places of public education is a key question in any affirmative action case coming before the court.
- The law or program must be narrowly tailored to achieve the state’s compelling governmental interest. For example, even if the court found that states had a compelling governmental interest in incorporating minority students, the state would have to demonstrate that its program only incorporated eligible candidates. A person could not be admitted to an institution of higher education simply because of his racial background.
- The law or program must use the least restrictive means for achieving the state’s compelling governmental interest; that is, there cannot be a less restrictive way to effectively achieve the compelling governmental interest.
When the court uses the strict scrutiny standard to evaluate affirmative action cases, the court is employing the standard because the court must do so in every case of suspect classification. These are cases in which a petitioner is questioning the state’s categorization and treatment of a particular minority group of citizens. Affirmative action cases fall in this category. For the classification to be constitutional, the class must have experienced a history of discrimination, must be definable as a group, must have limited political powers, and its characteristic must have little relationship to the government’s policy aims or the ability of the group’s members to contribute to society. The Supreme Court has consistently found that classification based on race, national origin, and alienage require strict scrutiny review. Thus, it is used in all legal contestations of affirmative action.
11.5 – The Diversity Debate
Debates over affirmative action center around the question of whether diversity in the classroom merits a program of state intervention.
Racial diversity in American schools remains a contentious political issue. Should public schools go out of their way to attract minority students? Does the government have a serious interest in the balancing of racial populations in education? Does a racially diverse classroom support educational goals? These questions are at the heart of the debate over affirmative action.
The institutional practice of slavery, and later segregation, in the United States prevented certain racial groups from entering the school system, particularly systems of higher education, until midway through the 20th century when the Supreme Court case of Brown v. Board of Education forbade racially segregated education. The Court ruled that school segregation stunted the educational development of minority children. Though Brown became law, most counties in the Southern United States did not fully integrate their schools until the 1970s.
Affirmative action programs in higher education are, of course, different from the desegregation programs of the mid-twentieth century. In affirmative action programs, the state goes beyond ensuring de jure equality for racial minorities in public education and makes strides to create conditions for de facto equality. Supporters of affirmative action believe that these types of proactive programs prove that all students benefit from racial diversity in the class room, and that institutional forms of racism have precluded members of the minority community from entering spaces of higher education. Some believe that racial and ethnic diversity in schools fosters understanding of new cultures and beliefs systems, dispelling stereotypes held by the majority population. Since the mid-twentieth century, researchers have found that benefits of racial diversity in schools range from higher reading levels, increased likelihood of high school graduation, positive impact on work aspirations and higher educational attainment, greater interaction with other racial groups and creation of interracial friendships in adult life, and higher desire to live and work in racially diverse environments.
Diversity in Education: Supporters of affirmative action programs posit that all students benefit from diversity in schools.
In addition to the perceived legal obstacles to the implementation of affirmative action programs, some opponents of affirmative action believe that race-conscious approaches to diversity in the classroom are harmful. They perceive little correlation between racial diversity in the classroom and increased performance by minority students. These theorists believe that focusing on race in diversity policies creates a heightened awareness of racial difference and perpetuates discrimination. Rather, these individuals usually support colorblind policies to instill the norm that skin color does not matter.
11.6 – The Supreme Court Revisits Affirmative Action
The first affirmative action case to come before the Supreme Court dealt with affirmative action in employment.
Chief Justice Burger: Chief Justice Warren E. Burger authored the opinion of the court in Briggs v. Duke Power Co. in 1971.
Though the current debate over affirmative actionin the United States generally refers to affirmative action programs in admissions to institutions of higher education, the term originally developed in regard to actions to proactively hire candidates from minority backgrounds. Examples of affirmative action programs offered by the US Department of Labor include outreach campaigns, targeted recruitment, employee and management development, and employee support programs. In broad terms, affirmative action programs in employment refer to the preferential treatment of minority employees in the hiring or management process.
The first Supreme Court cases adjudicating affirmative action dealt with affirmative action in cases of employment. The first court case in the United States over affirmative action was Griggs v. Duke Power Co., 401 U.S. 424, in 1971. In the 1950s, Duke Power’s Dan River plan had a policy that African-Americans were allowed to work only in its Labor Department, which constituted the lowest-paying positions in the company. In 1955, a time when even public education served as a barrier between whites and African Americans, the company added the requirement of a high school diploma for its higher jobs. After the passage of the Civil Rights Act in 1964, the company removed the racial restriction, but retained the high school diploma requirement, and added the requirement of an IQ test, with the racist belief that African Americans would score lower than whites on an IQ test. African Americans were far less likely to be hired than white candidates. It was found that white people who had been working at the firm for some time but met neither of the new requirements performed their jobs as well as those that did meet the requirements.
The court ruled that Duke Power’s employment requirements did not pertain to applicants’ abilities to perform the job and so was discriminating against African-American employees, even if Duke Power hadn’t intended for the policy to have that effect. The Supreme Court ruled that under Title VII of the Civil Rights Act, if the IQ and diploma tests disparately impacted ethnic minority groups, businesses must demonstrate that such tests are “reasonably related” to the job for which the test is required. Duke Power’s requirements did not pass this legal standard, and thus the case was decided against Duke Power.
11.7 – State Initiatives against Affirmative Action
States and the federal government have argued about the appropriate implementation of affirmative action policies.
Following the decision of Griggs v. Duke Power Company, the first court case to assess affirmative action in employment that made it to the Supreme Court in 1971, states took action to limit the application of affirmative action programs in their jurisdictions. This case decided for the minority petitioners, asserting that companies could not impose policies that raised obstacles for minority applicants so long as the the fulfillment of the policies were not reasonably related to job performance. States sought to limit the reach of federal policies regulating employment standards.
However, the scope of affirmative action debates soon extended beyond employment and entered the domain of higher education. Opponents to affirmative action have been even more vociferous about the use of affirmative action in higher education than when affirmative action pertains to employment policies. Since 1996, citizens of Arizona, Nebraska, California, Michigan, and Washington have all sponsored referendums to limit the legality of affirmative action policies. Since voters passed the referenda, the law in Michigan has been put on hold while the Michigan courts assess the constitutionality of voters’ limitations.
State Initiatives Against Affirmative Action: State referenda have been the most successful way for opponents of affirmative action to limit its reach.
Since the implementation of state policies resisting affirmative action programs, the federal government has pushed back to ensure that affirmative action policies are implemented. In 1973, the U.S. Congress passed Section 717 of Title VII of the Civil Rights Act and Section 501 of the Rehabilitation Act, both of which require all U.S. federal agencies to implement affirmative employment opportunity programs for all federal employees. In 1979, President Carter issued U.S. Executive Order 12138, creating a National Women’s Business Enterprise Policy and requiring government agencies to take affirmative action in support of women’s business enterprises. As for the judicial branch, in 1995, the Supreme Court heard Adarand Constructors v. Peña, which established strict scrutiny standards of review for race and ethnicity-based federal affirmative action programs.
Thus, one can see that affirmative action policies and programs have gone back and forth between the states and federal government, typically with state voters trying to limit the reach of affirmative action and the federal government insisting on implementation.
11.8 – Regents of the University of California v. Bakke
The 1978 Supreme Court case Bakke was the first case before the Court of affirmative action in higher education.
In 1973, Allan Bakke, a 33-year-old white male, applied to 12 medical schools. He had been a National Merit Scholar in high school and graduated from the University of Minnesota with a GPA of 3.51. Bakke had served in Vietnam. After college, he and went on to work as an engineer at NASA. Bakke said that his interest in medicine began while serving in Vietnam and increased at NASA, as he had to consider the problems of space flight for the human body. All 12 schools rejected his application, including the University of California, Davis School of Medicine.
University of California, Davis School of Medicine: Bakke was adjudicated as a result of the 1970’s admissions policies of the University of California, Davis School of Medicine.
At that time, UC Davis was employing an overt form of affirmative action. The school had 100 seats available to applicants, 16 of which were specifically for “Blacks,” “Asians,” “Chicanos,” and “American Indians” under an affirmative action program. By siphoning off these 16 spaces, UC Davis created a separate admissions process for those 16 seats alone. Bakke sued the Regents of the University of California based on the fact that these 16 seats were off limits for him based on race and that minorities had been admitted to fill these 16 seats with lower academic scores than Bakke. He sued to have the state force UC Davis to admit him.
The Supreme Court heard the case in 1978. There were two main issues before the Court: 1) Was it illegal and unconstitutional under Section VI of the Civil Rights Act of 1964 for Bakke’s to be excluded from consideration in UC Davis Medical School special admissions program for minorities? And 2) If Bakke’s exclusion was unconstitutional, should UC Davis be required to admit him?
The strongest contention by the University of California in countering the law suit was the justification of affirmative action by the good of diversity in the classroom. UC Davis’s admissions procedure was designed to increase diversity. UC Davis maintained that the program had originally been developed to 1) reduce the historic deficit of traditionally disfavored minorities in medical schools and the medical profession, 2) counter the effects of societal discrimination, 3) increase the number of physicians who will practice in under served communities, and 4) obtain the educational benefits that flow from a racially diverse student body.
Though fragmented and far from a unanimous decision, the Court ultimately held that affirmative action programs are constitutional. However,quota systems, such as that established by UC Davis, were unconstitutional. In other words, the state could enact programs that preference the applications of minority candidates in the name of campus diversity, but could not reserve a certain number of seats for minority applicants and use an entirely different admissions process.
Bakke is significant for its holding and for the role of the decision in the adjudication of affirmative action. Bakke was the first case the Supreme Court decided that referenced affirmative action policies in higher education. Further, the nuances and confusions surrounding the Bakke decision set the stage for decades of future adjudication over affirmative action. The Court did not establish a precise ruling, but rather opened the door for future debates.
11.9 – The End of Affirmative Action
Since Bakke, the Supreme Court has been questioning the constitutionality of affirmative action programs.
11.9.1 – Multiculturalism in America
Multiculturalism relates to communities containing multiple cultures. In the United States, multiculturalism is not clearly established in policy at the federal level, but ethnic diversity is common in both rural and urban areas. Continuous mass immigration was a feature of the United States economy and society since the first half of the 19th century. The absorption of the stream of immigrants became, in itself, a prominent feature of America’s national myth. The idea of the Melting pot is a metaphor that implies that all the immigrant cultures are mixed and amalgamated without state intervention
Critics of multiculturalism often debate whether the multicultural ideal of benignly co-existing cultures that interrelate and influence one another, and yet remain distinct, is sustainable, paradoxical, or even desirable. It is argued that Nation states, who would previously have been synonymous with a distinctive cultural identity of their own, lose out to enforced multiculturalism and that this ultimately erodes the host nations’ distinct culture.
11.9.2 – Affirmative Action in America
The Supreme Court Building: Since Bakke in 1978, the Supreme Court has slowly been limiting the types of affirmative action programs that are deemed constitutional.
Since the case of Regents of the University of California v.Bakke in 1978, several Supreme Court cases have revisited questions of affirmative action in higher education. The majority of these cases have limited universities’ abilities to incorporate race into admissions.
In 2003, the Supreme Court heard the case of Gratz v. Bollinger, regarding the undergraduate admissions policies of the College of Literature, Science, and Arts at the University of Michigan. The University of Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee admission. The University gave underrepresented ethnic groups, including African-Americans, Hispanics, and Native Americans an automatic 20-point bonus on the scale. As a point of comparison, a perfect SAT score was worth 12 points. After being denied admission, Jennifer Gratz filed suit on the basis that the University of Michigan’s point system discriminated against her on the basis of race, as she belonged to none of the specified minority groups. The Supreme Court held that the university could still consider race in college admissions, but that the University of Michigan’s ranking and point system was unconstitutional because it gave an automatic point increase to all racial minorities rather than considering what a specific individual could contribute to campus life.
The Supreme Court is expected to rule again on affirmative action in the upcoming term in the case of Fisher v. University of Texas. The case is brought by Abigail Fisher after she was denied admission to the University of Texas at Austin. UT Austin guarantees admission to the top 10% of students in every high school class, regardless of race. Fisher was not in the top 10% and was therefore evaluated based on her merits. She contends that race plays too great of a role in the decision making for students outside of the 10% rule.
Originally published by Lumen Learning – Boundless Political Science under a Creative Commons Attribution-ShareAlike 3.0 Unported license.