Civil Rights & Liberties in the 21st Century

John C Domino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351223607
• Edition: 3
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

This up-to-date analysis of the Supreme Court's landmark rulings on civil rights and liberties is a discussion of the facts, legal issues, and constitutional questions surrounding those rulings. Domino's text serves as either a core text in courses on civil liberties and civil rights, or as a supplementary text in courses on constitutional law and the judiciary. The book is written in the belief that the key to understanding constitutional law is not having the right answers but asking the right questions. It encourages students to be critical thinkers and provides a historical context so students can better understand competing social, legal, and political interests affecting the Supreme Court's decisions today. The text also includes numerous short excerpts from some of the more influential, eloquent, and controversial Supreme Court opinions to illustrate the handiwork of the powerful legal minds who have helped to shape our society. It reminds us that "the Court" is not an abstract legal mechanism, but rather a group of human beings with divergent opinions.

Chapter One
Introduction: Rights and Liberties and the Supreme Court

A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference.

Thomas Jefferson Letter to James Madison, December 20, 1787

It is emphatically the province and duty of the judicial department to say what the law is.

Chief Justice John Marshall Marbury v. Madison, 1803

Civil Rights and Liberties: Building a Consensus

For more than two centuries civil rights and liberties have been at the center of American political discourse and debate. More than mere words on parchment, rights and liberties are integral elements of our culture and firmly established in the American psyche. Americans possess an atavistic entitlement to liberty—a deeply held belief that rights and liberties are natural and inalienable. Yet, as this book explores, in a society diverse with viewpoints and cultural cleavages we have struggled to reach a consensus on the definition and scope of these rights and at times have foundered in our commitment to them. Paradoxically, as quickly as we have come to the defense of our freedoms so too have we often been willing to restrict the rights of others, particularly those who are perceived as threats to the prevailing social and political values of the majority.

The struggle to reach a consensus on the nature and scope of our constitutional rights and on the proper balance between order and liberty may be even more elusive today in a society that is deeply divided along ideological, religious, ethnic, and cultural lines. Increasingly, issues are being framed not only from the standpoint of two divergent ideologies of conservatism and liberalism but from a myriad of subcultural outlooks and pronounced divisions along social issues and cultural preferences.

Although the two terms are often used interchangeably when referring to a broad array of freedoms, civil rights and liberties actually constitute two distinct areas of constitutional protection. Liberty can be understood simply as the absence of constraints or restrictions upon what a person wants to do. Rights, then, protect liberty by legally defining the boundaries between a person’s liberty and the authority of government. In essence, rights limit how far the government can intrude into our lives.¹ Civil liberties are the most basic fundamental freedoms protected by the U.S. Constitution: the freedom to speak one’s mind or practice a belief system without fear of coercion or punishment, the right to move about freely, the freedom to associate with others, and the right to privacy in personal or intimate matters.

Liberty may be fundamental but it is not absolute. Some degree of our personal freedom is restricted in the interest of public safety, national security, or moral decency. We expect our liberty to be protected, but we also expect governmental protection against those who abuse liberty. Living in society we are not at perfect liberty to do as we please, for rights cannot exist without concomitant responsibilities or duties, such as paying taxes, serving in the military if called, and treating fellow citizens with respect and dignity. In a “civil” society we are expected to respect the rights of others and subject our own activities to reasonable governmental restrictions enacted for the good of society.

Whereas civil liberties protect individuals from governmental intrusions on fundamental freedoms, the term civil rights has come to connote a positive act of government intended to guarantee that each person is treated as an equal member of society. Civil rights, in contrast to individual liberties, guarantee freedom from discrimination, equal access to the polls and the political process, and full citizenship. The U.S. Supreme Court’s ruling in Brown v. Board of Education (1954), which overturned the doctrine of separate but equal in public schools; the Civil Rights Act (1964); and the Voting Rights Act (1965) are examples of governmental action intended to protect civil rights. Such measures promote equality by prohibiting arbitrary, unreasonable, or discriminatory treatment.

Equal treatment has also come to mean more than the absence of discrimination. Affirmative action programs, for instance, set aside special opportunities for certain classes of people in order to remedy the lingering effects of past discrimination or to promote or maintain cultural diversity.

Constitutional Foundations of Civil Rights and Liberties

The first ten amendments to the U.S. Constitution—the Bill of Rights—constitute the primary source of protection for our rights and liberties. However, as originally drafted by the Philadelphia Constitutional Convention of 1787, the Constitution did not have a bill of rights. The constitutional principles of separation of powers, checks and balances, and federalism—intended to act as a bulwark against the concentration and abuse of power— were woven into the Constitution so that one branch of government would not dominate the other branches or that the creation of a strong national (federal) government would not diminish the sovereignty of the states. Yet, one major objection to the proposed Constitution of 1787 was that it did not place sufficient safeguards on certain fundamental rights. The Constitution granted trial by jury in federal cases and prohibited bills of attainder, ex post facto laws, and the suspension of the writ of habeas corpus during times of peace; but as proposed by the Convention of 1787, the new Constitution enumerated no specific guarantees of freedom of speech, press, assembly, and religion. Nor did it address the rights of due process that became the foundation of our current justice system: the prohibition against unreasonable search and seizure and forced confessions, the right to counsel, and protection against cruel and unusual punishment. These rights were intended to place limits on the powers of the state by guarding against the kinds of abuses of power that colonial Americans experienced at the hands of British law enforcement.

Alexander Hamilton and other opponents of a national bill of rights argued that since the Constitution protected fundamental rights and since most state constitutions contained a bill of rights, the inclusion of a national bill of rights would be not only redundant but dangerous. In The Federalist (No. 84), Hamilton reasoned that the phrase “Congress shall make no law ...abridging the freedom of speech, or of the press” might actually imply that the national government had the power to regulate speech or the press as long as it did so without “abridging” those liberties. Nevertheless, on December 15, 1791, a national bill of rights—largely the work of James Madison, who was initially strongly resistant to the idea—was ratified and added to the Constitution. Madison knew that the precise meaning of the rights and liberties in the first ten amendments would always be subject to vigorous debate, but that the adoption and ratification of the Bill of Rights would codify the legal recognition of the existence of those rights.²

The framers did not proceed from the assumption that rights are to be granted to the people by the government, but from an understanding that rights exist independently of civil society and government. The First Amendment does not read “The People shall enjoy freedom of speech and press,” but rather “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Thus, the Bill of Rights codifies these fundamental rights in order to place concrete constitutional limits on governmental authority.

The Bill of Rights was adopted to protect the citizens of the states from the potential abuses of the new federal government; it was not intended to limit the powers of the state governments. Indeed, in 1833 Chief Justice John Marshall argued that had the framers intended the Bill of Rights to limit the powers of the state governments, they would have clearly expressed that intention in plain language.³ Marshall, who was by no means reluctant to expand the power of the national government, contended that the Supreme Court could not protect the individual’s rights from state action.

It was not until the middle of the twentieth century that the Supreme Court “nationalized” the Bill of Rights by selectively applying provisions of the first ten amendments to the states through the Fourteenth Amendment.

After the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted to abolish slavery, to grant citizenship to those who were emancipated, and to protect their right to vote. The amendments were intended by Congress to prohibit the states from imposing hardships on African Americans because of their race, color, or previous condition of servitude. Nearly three quarters of a century would pass, however, before the promise of equal justice for African Americans would even begin to be realized. The revolution in civil rights would finally come in 1954 in Brown v. Board of Education, where the Supreme Court ruled that racially segregated public schools violated the equal protection clause of the Fourteenth Amendment. The equal protection clause then became the means by which the Court scrutinized discriminatory state regulations and began to dismantle the legal underpinnings of a segregated society.

Constitutional Questions

At first glance the rights and liberties set forth in the Constitution seem abundantly clear; but upon closer scrutiny we can appreciate why the language it contains raises more questions than it answers. For example, the First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Two religion clauses of the First Amendment were intended to safeguard religious liberty and freedom of conscience, but does the phrase “no law respecting an establishment of religion” merely prohibit Congress from establishing or founding an official church or does it also prohibit any state-sanctioned religious practice, such as prayer or Bible reading in public schools? Is the free exercise clause an absolute, prohibiting any restrictions on religious practice or just the restrictions that are unreasonable? What about religious practices that contravene social mores or generally applicable laws? Should members of the Native American Church be allowed to ingest the hallucinogenic cactus peyote, an illegal controlled substance, in order to exercise their long-established religious rituals? The Church of the Lukumi Babalu Aye still sacrifices animals as a part of its religious ceremony. Should freedom of religion supercede animal cruelty laws?

The freedom of speech is a cornerstone of our democratic system because it is essential to the free and open exchange of political ideas and thus to the ability of a people to hold government accountable. More than this, it is essential to the human thirst for self-expression through literature, music, or art. The First Amendment plainly states that the freedom of speech shall not be abridged, but is this right absolute? If not, what kinds of restrictions are permissible? For that matter, how is speech defined? Does it extend beyond spoken words to other forms of expression?

The language in the Fourteenth Amendment raises even more questions than that in the First Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.” What, precisely, are the privileges and immunities enjoyed by citizens? Are privileges and immunities the same as rights? Does this clause confer additional rights to citizens beyond those in the Bill of Rights? In what ways does the due process clause of the Fourteenth Amendment differ from the identical clause in the Fifth Amendment?

The phrase “no state shall deny persons the equal protection of the laws” appears to need little if any clarification, but it too has proved vexing. Does it require only that all persons have the same legal status as citizens or does it require that all persons be treated equally; that is, free from any kind of discrimination? If the latter is so, does the equal protection clause forbid only state-sponsored discrimination in schools and other state facilities or does it protect against private discrimination by landlords, restaurant owners, and private clubs and organizations? Does it extend to women as well? The equal protection clause of the Fourteenth Amendment was adopted to prohibit states from denying to African Americans the equal protection of the laws. What about other groups of persons who have experienced discrimination on the basis of sex, age, national origin, religion, or sexual preference?

Purpose of This Book

Analysis of Supreme Court Rulings. Since the answers to these constitutional questions can be found in the opinions of the U.S. Supreme Court, it is the purpose of this book to undertake a comprehensive analysis of the major Supreme Court rulings that have shaped the nature and scope of our civil rights and liberties. Rather than a collection of abridged opinions found in traditional casebooks, this book offers a detailed examination of the facts, constitutional que...