Civil Rights

The right for all people to have fair and equal treatment under the law. The Constitutional basis for civil rights case law is found in the 1st, 5th, 13th, 14th, 15th, 19th, 24th, and 26th amendments.

Topics in civil rights:

- equal protection clause
   Amendment XIV: nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws 

   As we have said, this becomes the basis for the incorporation of civil liberties and civil rights to all people in all jurisdictions throughout the United States. This is why the government cannot discriminate. Or can it??


- basis for acceptable discrimination
  The courts have determined that there are acceptable times when the government can make a reasonable distinction between people. Therefore, the government can discriminate. However, if the government is going to discriminate, the Court will review the discrimination using one of three tests.
     - Rational Basis Test
              Are reasonable methods used to accomplish a legitimate goal of government? 
              ( Example: age limits on driving)
     - Intermediate Scrutiny Test
             Same question but often with cases involving gender discrimination
             ( US v Virginia ) ( Example: selective service )
     - Strict Scrutiny Test
              Same question but: 1) a fundamental right is being restricted     and 2) involves race/origin
              ( Korematsu v US )  ( Loving v Virginia )


- segregation (de facto & de jure)
    Segregation was the law in many states throughout the south from the post-Reconstruction era through the mid 20th Century. These statutes were referred to as Jim Crow laws and constitute what we call segregation de jure (segregation by way of law). These laws were upheld, even by the courts, until the 1950's. While segregation de jure started to be repealed by way of Court rulings and Congressional acts of the 50's and 60's, certain economic and social facts remained and left us with segregation de facto (segregation as a matter of fact).


- Plessy & Brown
    Plessy v Ferguson  - established the doctrine of 'separate but equal' as precedent
    Brown v Board of Education  - determined that 'separate but equal' was inherently not equal


- extending equal protection
    To women:
      Equal Pay Act of 1963
      Title IX of the Education Amendments of 1972
      Meritor Savings v Vinson
 
    To Hispanics:
       Hernandez v Texas
       Voting Rights Act of 1975

     To the disabled:
        Americans with Disabilities Act of 1990
        

- affirmative action
   What is affirmative action?
     Policies whereby institutions and employers provide opportunities for members of historically underrepresented groups
   What is the government and Court opinion on affirmative action?
      President Johnson's Executive Order #11246 (1965)
      Regents of the University of California v Bakke
      Johnson v Transportation Agency
      Gratz v Bollinger
      Fisher v University of Texas

      

Individual Liberties: The 2nd, 4th, & 5th Amendments

Amendment II: 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

The Right to Bear Arms:
  US v Miller
  Heller v Washington DC










Amendment IV: 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

Protection Against Unreasonable Search & Seizure
  - law enforcement must have a warrant or probable cause to search and/or seize
  - "plain view" doctrine
  - evidence obtained via a warrantless search is subject to the exclusionary rule
  - electronic communications have been determined by the Court to be a person's "papers"
  - civil liberties of students are even more limited

Search & Seizure:
  Arizona v Hicks
  Weeks v US
  Mapp v Ohio
  Olmstead v US
  Katz v US
  New Jersey v TLO
  Board of Ed of Pottawatomie Co v Earls


Amendment V: 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 offence 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

- Grand Jury cluase
- double jeopardy clause
- self-incrimination clause
- due process clause
- eminent domain clause

Due Process:
 Federal government cannot deprive person of life, liberty, or property with the due process of law
substantive due process v procedural due process
procedural due process - correct procedures must be followed (can't make it up as you go)
substantive due process - the laws themselves must be fair
Due process can be denied if the state has a compelling case for it.
  Mackey v Montrym


The 'Right to Privacy'
Like 'separation of church and state', this does not exist as text in the Constitution. However, the Court has upheld its belief that Americans have a right to privacy through their interpretation of the 4th, 5th, 9th, and 14th Amendments.
  Olmstead v US
  Griswold v Connecticut
  Roe v Wade
  Planned Parenthood v Casey

The First Amendment

The most cherished and argued about Amendment to the Constitution.

Amendment I: 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

Religion:
The Constitution does not say anything about 'separation of church & state'. That phrase is taken from a writing of Jefferson  in which he said that he believed that the 1st Amendment created "a wall of separation between Church and State". What the Constitution does say, and what the federal court system has been tasked with interpreting regarding religion is:
Congress shall make no law respecting an establishment of religion (establishment clause) nor prohibiting the free exercise thereof  (free exercise clause)
Establishment clause:
  Lynch v Donnelly
  McCreary County v ACLU
  Van Orden v Perry
  Everson v Board of Education
  Engel v Vitale
  Lemon V Kurtzman
  Wallace v Jaffree
Free exercise clause:
  Reynolds v US
  Minersville School District v Gobitis
  WV State Board of Ed v Barnette
  Wisconsin v Yoder

Speech & Press:
Congress cannot make a law abridging the freedom of speech or of the press. But, again, that is not absolute. There are limits. The Court has traditionally protected individuals from defamation by way of slander (spoken) and libel (print). The Court has also traditionally protected the government in its attempts to prevent treason and sedition.
Speech:
  Schenck v US
  Whitney v California
  Brandenburg v Ohio
Press:
  New York Times Co v Sullivan
  Reno v ACLU
  Near v Minnesota
  New York Times Co v US
Symbolic Speech:
  Tinker v Des Moines Independent Community School District
  Texas v Johnson

Assembly & Petition:
Congress cannot abridge the right of the people peaceably to assemble. The people also have the right to petition their government for a redress of grievances. (Hence, all of those lobbyists people love to hate are legit)
  DeJonge v Oregon
  Edwards v South Carolina
  NAACP v Alabama
  

  

The Bill of Rights & the 14th Amendment

Remember the ratification battle for the Constitution and the demand that Antifederalists had for "guarantees" of their liberties. This battle, of course, produced the Bill of Rights.

Bill of Rights - 1st ten amendment to the Constitution; protect civil liberties and civil rights

Civil liberties
   freedom to think and act protected from government abuse
      - regards personal actions in eyes of government
      - protected from abuse; can be limited

Civil rights
   right of fair and equal status/treatment for all people
      - regards status as person in eyes of government
      - right of fair treatment; much more difficult to limit

Bill of Rights

Civil liberties are the most litigated part of the Constitution. Since the Constitution is somewhat gray by nature, the openness to interpretation that many of the amendments exhibit leave it wide open to challenges over intent and application. The heart of these amendments are the liberties of the individual people. But what if they contradict? What if one person exercising their liberties interferes with another person exercising theirs? Or with the government attempting to carry out its responsibilities?

Where do your liberties end and mine begin?

This is why the study of civil liberties and civil rights is wrapped up in case law.

What does the 14th Amendment have to do with the Bill of Rights?

The 14th is how the Bill of Rights becomes applicable to the states. Prior to the 14th, they only apply to citizens of the United States, not the individual states. 

Read 14th Amendment

 - citizenship clause

 - due process clause

 - equal protection clause

Again, it is up to individuals to challenge institutions if they feel that their rights or liberties are being violated. Because of the 14th, the Bill of Rights has been applied to the states on a case-by-case basis. This is the process of selective incorporation.

The United States Supreme Court

Overview the history of the Supreme Court (p.234-236 in the text), paying attention to these things
- the differing visions for the Court among the Framers
- the significance of the Marshall Court
- the historically-viewed mistakes of the Court
- the significance of the Warren Court

The process of appointing a Supreme Court nominee is the same as what we have examined before regarding judicial appointments. However, the harshness of the critique of the nominee is much greater.

- legal expertise

- party affiliation

- judicial philosophy

- acceptability to Senate

All of these are unofficial requirements to be a justice of the Supreme Court. There are no formal qualifications. But because of the scrutiny of being appointed to the highest court in the land, the Senate is usually much more deliberate about confirming a nominee.

Confirmation hearing of Justice Elena Kagan

Procedure of the Supreme Court

- October - June/July

- prepare for block of cases, hear block of cases, decide and write opinions on block of cases (rinse, lather, repeat)

- law clerks do tremendous amounts of work for justices

- Court decides which cases it will hear during term (original and appellate)

- Justices must decide which appeals they want to take up (minimum 4 justices)

- Court grants certiorari to cases it will hear

- Justices prepare by reading case briefs, studying law, researching and reviewing precedent

- Court may consult amicus briefs in preparation for oral arguments

- Oral arguments before the Court (30 minutes per side); Justices pepper with questions

- Justices meet behind closed doors to review/discuss case

- Chief Justice assigns duty of writing majority and (if necessary) dissenting opinions

- Many justices often offer concurring opinions

- Court opinions are detailed legal explanations of reasoning for the decision that was reached

- Opinions of case become part of Court precedent

Federal Justices, District Courts, & Appellate Courts

All federal judges, whether they be at the district, appellate, or Supreme Court level, are appointed by the President (with...guess what).
When deciding who to nominate for appointment, the President usually considers 4 things
  - legal expertise
             integrity, competence, experience, knowledge
  - party affiliation
             usually affiliated in party politics before serving as a judge; people associated with
  - judicial philosophy
             loose interpretationist (judicial activism) or strict constructionist (judicial restraint)
  - likelihood of confirmation by the Senate
             senatorial courtesy with lower positions; non-divisive for SC

Appointees to any of the three tiers of the Federal Court System have a lifetime appointment. That does not mean, however, that there is no check on the power of the judiciary. While the Courts wield the power of judicial review, their power can be checked by
 - appointment (executive and legislative)
 - impeachment (legislative)
 - amendments to the Constitution (legislative)
 - inability to create action (nature of the institution)

District & Appellate Courts
see map on p.228

District Courts
- 94 districts nationwide
- minimum of 2 judges per district (Southern District of NY has 44)
- each has separate bankruptcy court

Appellate Courts
- 13 courts (12 circuits plus DC)
- mostly hear appeals from District Courts (US govt cannot appeal rulings)
- majority of cases are civil/criminal
- most rulings of lower courts upheld (fewer than 4% overturned)
- do not retry case; reexamine facts, court proceedings, and legal briefs of litigants (on occasion, oral                   argument is allowed)

Be familiar with various other federal courts

Federal Court Jursidiction

Before we begin, let us consider for what purpose courts exist. They are a way for people to resolve conflict without having to resort to violent measures.
Where does this conflict come from? It comes from the fact that someone feels that an offense has been committed.
That offense is, in a certain legal context, referred to as a tort. (Hence, if you hear the phrase 'tort reform', they are talking about legal reforms)
Once we have established that there has been an offense, the next question is then "Who has been offended?" Is it
     - an individual  (civil matter)
     - society as a whole   (criminal matter)
If it is a criminal matter (society has been offended), then what segment of society has been offended?
     - the municipality
     - the state
     - the nation
The prosecution of the offender in these matters often then comes down to which level of society that has been offended is willing to devote its limited resources (time, money) to hold the offender accountable.
The court system for that society that has been offended and seeks to hold the offender accountable is then considered to have jurisdiction in that matter.
jurisdiction - the authority to hear and decide a case

Okay...what does all of that have to do with the judicial branch of the federal government?

What is the offense is related to a Constitutional matter? Then we must look at the Constitution to see what is says regarding this issue based on the facts present.
Who gets to interpret the Constitution?  What's that called? Where did it come from?
What if the offender or the offended party is the United States of America?

In these matters, and a few others (see chart on p.221), the United States Federal Court system has exclusive jurisdiction. They are the only ones with the authority to hear and decide these cases.

So, if you feel that your Constitutional rights have been violated, you would take that grievance to the federal court system. The first court to hear you case in that process would be considered to have original jurisdiction.

Article III Section 1
- established a Supreme Court and "such inferior courts as the Congress may from time to time ordain and establish"

Judiciary Act of 1789
- established a three-tiered court structure (district, appeals, Supreme)

notes on the Federal Court structure
- 94 Federal District Courts spread throughout the United States
- 12 Federal Courts of Appeal (appellate courts, circuit courts)
- Supreme Court (court of last resort)
           - appellate jurisdiction
           - original jurisdiction in certain cases
           - does not hear all cases appealed; justices choose
           - hear roughly 100 cases of 8,000 petitions per year
- Article I courts (various other courts created by Congress for specific matters; see graphic on p.222)