Chapter 8. Civil Rights and Liberties: Constitutional Protections That May Not Be Constitutionally Protected
Last Updated: 9-26-2013
“The right of the people peaceably to assemble, and to petition the government for a redress of grievances”—the crowd of 200-300,000 stretching from the Washington Monument to the Lincoln Memorial at the August 28, 1963 Civil Rights March on Washington, at which Rev. Martin Luther King delivered the “I have a dream” speech and which increased pressure to pass the 1964 Civil Rights Act (National Archives, public domain)
II. Review of Rights and Liberties in the Constitution
III. Incorporation of the Bill of Rights to Apply to the States
B. Passage of the Fourteenth Amendment—Incorporation: does it apply the Bill of Rights to the states?
D. Selective Incorporation—Almost There, But Not Quite
IV. Some Key Areas of Rights and Liberties
A. First Amendment Rights and Liberties
1. Religion – two parts
4. Assembly and Petition
B. Second Amendment—the Right to Bear Arms, Individual or Collective?
C. Criminal Justice and Rights of the Accused--Amendments IV, V, VI, and VIII
D. Ninth Amendment—Other Rights “Retained by the People”
1. Privacy—Sexual Matters and Abortion
2. Emerging Rights—the Right to Death with Dignity and Same-Sex Marriage
E. Civil Rights of Groups—Individualism Both Promotes and Limits Civil Rights
I. Introduction: The Paradox of Our Constitutional Rights and Liberties
year old Joseph Frederick skipped going to his
We often do not have the rights we think we have, even when they seem clear in the Constitution—
as a high school student, Joseph Frederick did not have the full protection of the right of free speech
(msnbc photo that may be copyrighted, but qualifies as fair use in the view of Wikipedia: http://en.wikipedia.org/wiki/File:Bong_Hits_4_Jesus_banner.jpg).
and his parents went to court. They argued that the suspension violated the
first amendment. The school defended itself. It argued that advocating drugs at
a school function is not protected speech because it is disruptive of the
school’s mission. After losing his case in the federal district court in
grinds slowly. Five years later, in 2007, the case went to the U.S. Supreme
Court. Kenneth Starr, the famous special prosecutor who had pursued the
a six to three decision, the Supreme Court ruled in favor of the school. On the
majority side was a concurring opinion by Justice Clarence Thomas that students
have no free speech rights in school at all—that the first amendment does not
apply to schools. The majority was not willing to go that far. They concluded
that even though the event was not on school grounds and even though
John Paul Stevens wrote the dissenting opinion for the other three justices. They saw the message as less clearly pro-illegal drugs, as possibly promoting medical use of pot. They argued that allowing school officials to interpret it any way they want amounts to letting officials ban any speech with which they disagree. They saw the speech as constitutionally protected.
What does all this mean? Americans are fond of talking about their Constitutional rights and liberties. But exactly what are these rights and liberties? You should know from the chapters on the Constitution and the judicial system that the words in the Constitution do not necessarily mean what we think they mean, even when the words seem perfectly clear. Thus we have the central paradox of this chapter: our constitutional rights and liberties are not necessarily constitutionally protected. Such was the case of Joseph Frederick. He thought the first amendment clearly protected his right to such speech. It did not.
Let me add another twist to the paradox. Most of the constitutional rights and liberties that we actually have did not come from the Constitution by itself. Rather they came from political struggles in which people fought for and sometime even died for an interpretation of the Constitution that would recognize these rights and liberties. The interpretation counts more than the actual words. Of course, you should know that by now from reading the chapters on the Constitution and the judicial system, in which you learned about the role of the Supreme Court in interpreting the Constitution.
That struggle is not over. Every generation faces forces that try to reduce or narrow rights, usually for quite popular reasons. Local majorities and sometimes even national majorities are often eager to ignore the rights of minorities, especially if the minority is defined in some way that makes it unpopular or feared at the time. You can certainly think of such groups that exist right now. If someone does not stand up and say “NO,” then rights are lost. If one group loses rights, then what is to keep authorities from restricting rights for other groups? You never know when or if you will become classified as a member of some group that people feel is dangerous, and therefore not deserving of protection.
In this chapter we will begin by defining what we mean by civil rights and liberties. Then we will look at what the Constitution seems to include in the way of rights and liberties. Next we will tell the story of how these rights and liberties have been partially applied to state governments—the idea of “incorporation.” We follow this by examining the struggle in claiming liberties in several key areas, including rights of the accused and the expansion of rights for groups that have found their rights denied. Each area we examine has been characterized by controversy and political conflict. These conflicts will continue.
II. Review of Rights and Liberties in the Constitution
Some texts have separate chapters on civil rights and civil liberties. We are combining rights and liberties in this relatively short text. Most Americans could not tell the difference between these two terms. Civil rights refer to equal treatment and protection of members of groups. So when we are talking about the civil rights movement among African Americans or Hispanics or the women’s rights movement, we are talking about civil rights. Civil liberties refer to individual protections against government actions, such as restrictions on speech or religion or treatment in legal proceedings.
That seems simple enough, so why are we confused? The label we use for an important part of the Constitution may be the source of confusion. The Bill of Rights, which we apply to the first ten amendments, is where you will find most of the civil liberties that we have, such as free speech and so on. Things would have been simpler if it had been called the “Bill of Liberties.” But no one consulted me on this! So let’s move on.
As you may remember in the story of ratification of the Constitution, several states were not satisfied that the Constitution placed enough limits on the powers of the stronger central government that was being proposed to replace the Articles of Confederation government. So these states added a call for additional safeguards to their ratification of the Constitution. Supporters of the new constitution agreed to this deal. As a result, the first Congress proposed a number of amendments. The states ratified ten of them in 1791, only two years after the new government began operation. We know them as the Bill of Rights.
Nevertheless, the main body of the Constitution does contain some rights and liberties, which the Founders felt were adequate when they drafted the document. For example, all the checks and balances built into the Constitution limited what any branch of government could do. The Founders considered this a limit on the power of the central government.
More specific protections are in Article I, Section 9. This section prohibits suspension of the “privilege of the Writ of Habeas Corpus” except “in Cases of Rebellion or Invasion.” Habeas corpus refers to the requirement that government bring charges against anyone they hold in custody. To put it another way, the government is not supposed to arrest you and imprison you without giving an explanation of the legal charges against you. Charges allow the courts to hold a trial to determine if the charges have any factual basis. In practice this depends on what government authorities consider to be an invasion or rebellion. Probably the worst abuse of this right was when Japanese American citizens were held in detention camps for years during World War II. You might look this story up on the Web—a very sad chapter in American history.
Thousands of Japanese American citizens were forcibly removed from their homes and held, without the
“privilege of writ of habeas corpus,” in “relocation camps” during WWII, such as the one in this 1942-3 picture
in the California desert. The U.S. Supreme Court approved the actions (U.S. Government photo, public domain).
That same section prohibits “bills of Attainder.” A bill of attainder is a law that a legislature passes which declares that some act is a crime and that some specific person is also guilty of that crime without holding a trial to determine guilt.
The section also prohibits “ex post facto Law,” or after-the-fact law. You are probably more familiar with that term. One cannot be tried for violating a law that was not in place when the act was committed. All of these things were of concern to the Founders because of their past experiences with the British government.
Article I, Section 9 contains a long list of other limits on the central government. The national government could only impose taxes that were in proportion to the populations of each state. This meant that taxes, based on income rather than population, were not allowed. In 1913 the Sixteenth Amendment changed this to allow an income tax. The national government could not tax exports from any state. It could show no preference for one state over another in regulating interstate commerce. Finally, the national government could grant “No Titles of Nobility.” They did not want to have the class system that existed in Great Britain in which rank and privilege was automatically inherited.
Article III, Section 3 limits the ability of the central government to convict people of treason. It requires “the testimony of two Witnesses to the same overt Act, or on Confession in open Court.” The idea was to make conviction of treason more difficult.
Article VI guarantees that no religion will limit who can run for office or
hold public employment. “…no religious Tests shall ever be required
as a qualification to any Office or public Trust under the
But as you know, this was not enough to satisfy those who feared a strong central government. So the Bill of Rights included a great many other protections, and the amendments that came later in history added a great many more protections. For now, we will list the general areas amendment by amendment and make brief comments on some of the areas. Later we will go into greater detail in how some of these protections have been interpreted.
The most famous amendment is the First Amendment, which lists five or six protections, depending on how you read the clause about religion. The amendment begins with the five words “Congress shall make no law.” As we shall see, “no law” does not really mean no law. Rather it means no unreasonable law. What is reasonable is a matter of endless debate—like schools prohibiting speech that school officials feel disagrees with existing drug policy. With that in mind, the amendment says that Congress may pass “no law” in several areas: “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.” This last phrase means to contact government to ask them to address complaints. None of these restrictions on government action is absolute.
Second Amendment is about what citizens like to think of as their right to
“bear arms.” Make sure you spell that correctly—bare is different than bear!
If you read it carefully, the first phrase refers to “A well regulated Militia,
being necessary to the security of a
The Third Amendment is perhaps the least controversial because it has never been tested. It refers to a practice that Americans found horrid, that of British troops taking over private property to house their troops. So it prohibits this practice “in time of peace…without the consent of the Owner.”
In the Fourth Amendment you will find the famous protection against “unreasonable searches and seizures.” To search anyone’s property, the government must obtain a warrant, which will be issued “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This one is filled with many words that the courts have had to interpret. Lots of searches have been judged to be reasonable, often without any formal warrant.
The Fifth Amendment continues in matters of criminal proceedings, giving a list of protections. These include the requirement of a Grand Jury indictment (a grand jury is a group of citizens who review evidence to see if it is sufficient to support bringing charges against someone) before anyone can be held (except for members of the military), prohibiting double jeopardy (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”), and protection against self-incrimination (“compelled…to be a witness against himself”). This is when someone refuses to testify in a legal proceeding that could harm them. They claim this right by saying something similar to “upon advice of counsel, I am invoking my fifth amendment rights.”
Two more protections in the Fifth Amendment merit some additional comment. We start with the famous “due process” clause, which states that the government shall not take “life, liberty, or property, without due process of law.” This same phrase is also in the Fourteenth Amendment, which refers to state government actions.
Down through time the courts have defined exactly what is included under “due process of law.” Most generally due process includes two kinds of process. The first is procedural due process, referring to following the proper procedures.
The second kind of due process is substantive due process, which is far more controversial. Substantive due process requires the government to have a really good reason to take someone’s life, liberty or property, even if the government follows the correct procedures. Of course this means that the courts end up deciding what reasons are good enough. Another way of thinking about substantive due process is to ask whether the outcome (as opposed to the procedure) is fair. Fairness depends on social notions of fairness that are built into history and culture. Again, the courts end up making subjective qualitative judgments. This troubles people who want the courts to play a more objective role and leave questions of fairness to the political branches of government that write laws.
In a number of cases the Supreme Court has explicitly used the idea of substantive due process to overturn laws that force parents to send their children to public schools for education, to prevent keeping a non-dangerous mentally ill person confined to a hospital, and overturn cases where a court allowed extremely high monetary damages. But sometimes the courts allow things that seem unfair to stand. Then if wrongs are to be righted, it is up to we the people to pressure other branches to make it right, or even to force change by ourselves.
For example, consider the question of unequal sentencing for crimes that seem similar. The government might charge two people with breaking drug laws, one for trafficking powdered cocaine and the other for crack cocaine. Laws setting penalties for crimes involving crack cocaine have been much harsher by a ratio of 100 to 1! Authorities could treat both people the same in terms of procedure. But the outcomes in terms of the sentence have been greatly different. Moreover, African-Americans were far more likely to use crack cocaine than whites, who were more likely to use powdered cocaine. So the impact led to much longer sentences for blacks than whites. As society began to question the fairness of this, the question could be seen as a violation substantive due process. The courts failed to see this as a violation of substantive due process and upheld these unequal sentences. But under public pressure, Congress passed the Fair Sentencing Act in 2010 that reduced the disparity to 18 to 1. While less unfair, one might argue that that this difference still violates the idea of substantive due process.
Users of crack cocaine, like those shown above, are subject to much longer sentences than users of powdered cocaine,
which strikes many people as violating a sense of fairness of outcome, or “substantive due process,” even if correct
steps are used in conviction so no violation of procedural due process took place (public domain).
“Three strikes laws” are a controversial area in which the courts have not applied substantive due process rules to address common sense notions of fair outcomes. Instead, citizens have forced some change, at least in California where citizen initiated change is possible. Three strikes laws require life sentences for those convicted of three serious crimes. They are aimed at getting repeat offenders off the streets for good. About half the states in the U.S. have such laws. In California in 1994 voters used the initiative process to put in place one of the harshest laws in the nation by counting all felony convictions as serious crimes. This resulted in about 3,000 people serving life terms after conviction of non-violent felonies, such as passing a bad check. This struck many as grossly unfair and also cost taxpayers a great deal of money in prison expenses. In 2012, voters again used the initiative process to limit the law to apply only to serious and violent third offenses.
The final clause in the Fifth Amendment is called the “takings clause,” which says that no “private property (shall) be taken for public use, without just compensation.” The clause has several terms in it that have been matters of legal interpretation. What does “taking” mean? Confiscating is an obvious form of taking. The power of government to take your land is called the power of “eminent domain.” But what about restricting how the land is used through zoning or building codes and limits? This kind of action can reduce the value of the land, even though it is not literally taken. What counts as “public use?” Does that include just obvious uses like building roads or putting up power lines? Or does it also include giving the land to private developers so that it can be redeveloped to generate higher property tax revenues? In recent years many individuals and groups have challenged a wide range of government regulations—including environmental laws—that affect the value of their private property using the “takings clause.” These challenges are called the property rights movement. You can find a lot of cases on this by doing a Web search on either “takings clause” or “eminent domain.” We will look at one very old case shortly.
The property rights movement has challenged building regulations that prevent the construction of houses
too near the ocean as a violation of the “takings clause” in the Fifth Amendment, even when such
restrictions might prevent damage from storms (2005 FEMA photo, public domain).
The Sixth Amendment continues a list of protections afforded to those accused of any crime. They include the right to a “speedy and public trial,” “to be informed of the nature and cause of the accusation,” the right to “be confronted with the witnesses against him,” the right to compel “witnesses in his favour” to testify,” and finally “to have the Assistance of Counsel for his defense.” (Note how some of the spellings have changed over history.) Again, each of these terms has had to be defined. How fast is speedy? Can judges make trials private if the judge feels that a public trial would result in some harm? At what point and for what crimes must counsel be provided? Must that counsel meet any minimum quality standards? The courts hear many cases that answer these questions, as well as other questions concerning criminal procedures.
The Seventh Amendment concerns legal matters in civil suits. The Seventh gives the right to a jury trial in lawsuits involving more than $20. At the time this was a significant amount of money, but of course it is trivial today. This level of specific detail is unusual for the Constitution. Constitutional scholars would argue that details like this are better left to statutory law passed by a legislative body. Had the amendment said “set at whatever level deemed appropriate by Congress,” it would have given the courts more flexibility in limiting the number of jury trials. The result today is that all law suits in federal courts retain the right of jury trial.
The Seventh goes on to say that facts established by juries cannot be reexamined by any other court. But it adds the words “than according to the rules of common law.” Common law is judge-made law, that is, principles of fairness that judges use in making rulings. For example, in the famous Charles Manson murder trial, the defendant turned to the jury and held up a newspaper with the headline “Nixon Declares Manson Guilty.” Then Manson asked for a mistrial on the basis that the ill-tempered words of the President had biased the jury. The judge applied the common law principle that “no man should benefit from his own misdeeds” to deny a mistrial. Substantive due process, which we just discussed, is a basic principle of common law, so denial of substantive due process could allow courts to reexamine facts.
The Eighth Amendment goes back to criminal matters, guaranteeing bail and fines that are not “excessive” This does not guarantee that people will actually have any right to bail. If the courts find that a person is a flight risk, bail can be denied. What is excessive is also a highly subjective matter. For example, even a bail of $150 (not an unusual amount for minor crimes) can be excessive for someone who is homeless and/or without any financial resources. Someone who cannot get out on bail is pretty much stuck with accepting any deal that the prosecutors offer. Going to trial while in jail and not being gainfully employed greatly increases the odds of being found guilty. And keeping people in jail awaiting trial, which can take a year, costs taxpayers a great deal of money. Electronic monitoring would be much cheaper and more humane, allowing people to continue working in many cases. So why do we continue a bail system that operates this way? It is because of the power of the bail bond industry that makes a great deal of money in the current system. The power of interest groups in our political system is the subject of another chapter.
The Eighth Amendment also protects those found guilty from “cruel and unusual punishments.” What is “cruel and unusual” is also a subjective matter and has changed as common punishments and standards of cruelty have shifted.
most controversial area here is that of capital punishment. As of this writing,
more than 100 executions
No executions, but the law allows them
No executions and no death penalty
Executions since 1976—executions are seen as more “cruel and unusual” in some states than others in the U.S.,
reflecting differences in regional culture (public domain).
The Ninth Amendment is perhaps the most interesting amendment because it leaves room for a range of other rights that could exist, but are not explicitly mentioned. It says that the listing of certain rights “shall not be construed to deny or disparage others retained by the people.” So what are these rights? Its wording seems to demand judicial interpretation.
Those arguing for a narrow literal interpretation of the Constitution and the rights in the Constitution have a great problem with this amendment. This is because if they want to limit rights to the ones literally written in the Constitution, they must find a way to construe or interpret this amendment as meaning not what it literally says. They must find a way to say that this amendment means that no other rights exist. So ironically, a narrow literalist interpretation of the Constitution requires a broad interpretation of this particular amendment! Robert Bork, who was turned down for a seat on the Supreme Court by the Senate in 1987 in part because of his narrow views on the Constitution, evaded any interpretation of the Ninth Amendment by saying it means nothing. He called it an “inkblot” in the Constitution that must not be interpreted by judges because the meaning is no clearer than words under an inkblot.
of the rest of the amendments expand rights. The Thirteenth banned slavery. We
have already mentioned the Fourteenth, which grants the right of citizenship to
all those born in the
rest of the rights in the amendments concern voting. The Fifteenth (1870)
presumably guaranteed the right to vote, though that took about a hundred
years, another story we will discuss later. Amendment Seventeen (1913) gave the
people the right to vote for
The broad sweep of all these changes in the Constitution has been to expand rights and the groups to whom rights are guaranteed. In fact, we can only find one amendment that restricted rights, and that amendment was undone by a later amendment. The Eighteenth Amendment (1919) created prohibition, a ban on the sale of alcohol. This proved so difficult to enforce because of the cultural values it challenged that fourteen years later, in 1933, the Twenty-first Amendment repealed the Eighteenth.
Government agents destroying alcohol during Prohibition, put in place by the Eighteenth Amendment, the
only amendment to restrict rights, which was later overturned by the Twenty-first Amendment (public domain).
III. Incorporation of the Bill of Rights to Apply to the States
If you read the last section carefully, you know that the Bill of Rights was aimed at protecting citizens from actions of the national government. But what about actions by state governments? Does the Constitution protect us from state governments that may want to restrict speech or religious practice or deny us legal counsel when we are tried for crimes? You may remember the universal answer to nearly all political questions: it depends. That answer applies here. It depends on what time in history we are talking about and what right we are talking about. The answer involves a story with the same theme we saw in looking at amendments concerning the right to vote—the gradual slow and sometimes painful expansion of rights. It involves the paradox of seemingly obvious constitutional rights not being constitutionally protected.
Barron owned a wharf located on a navigable waterway that ran into
Barron looked at the “takings” clause in the Fifth Amendment in the Constitution. He felt that the government had taken his property, or at least its value, for public use in pursuing the public works, and that he deserved “just compensation.” So he sued the city. He lost. He then appealed the case to the federal courts because it rested on words in the United States Constitution.
Marshall was still Chief Justice when Barron v. Baltimore reached
the Supreme Court. Without even hearing the City of
Without water in the stream that allowed barges to float to Barron’s wharf, his business was
worthless—but because the City of Baltimore, not the national government, caused the stream to dry up,
the Supreme Court ruled in 1833 that the “takings” clause in the Fifth Amendment did not entitle Barron
to “just compensation.” After passage of the Fourteenth Amendment, most of the rights in the Bill of Rights were
gradually applied, or “incorporated,” to state actions (photo of dry stream, that is NOT in Baltimore, but shown just to
illustrate the point, by “Topato”/John, Creative Commons).
B. Passage of the Fourteenth Amendment—Incorporation: does it apply the Bill of Rights to the states?
moved on. The nation fought the Civil War, and the national government,
concerned that states might deny rights to those freed from enslavement, proposed
the Fourteenth Amendment. The states quickly ratified it in 1868, thirty years
after the Barron case. Here the wording is critical, so let’s look
carefully at the relevant phrase in Section 1: “No state shall abridge the
privileges or immunities of citizens of the
does that sound like it means to you? The way I read it is that states can’t
take away rights (“privileges or immunities”) that you have as a
In the late 1800s the Supreme Court began to apply first amendment rights to state actions. Did that mean that all the other rights also would be applied?
1935 Frank Palko was fleeing the scene of a crime.
Police cornered him and he killed two police officers before being captured.
The state of
Palko and his lawyers objected that this
violated the Fifth Amendment protection against double
jeopardy (“twice put in jeopardy of life or limb”). Moreover, now that the
Fourteenth Amendment had been passed,
Despite all this, Palko lost in an eight to one decision! The majority decision in Palko v. Connecticut said that the Court would only apply rights to states that were “essential to a fundamental scheme of ordered liberty.” Personally, I cannot think of anything that is more fundamental to liberty than ones life. If government can try someone until they get a guilty verdict or a harsh penalty, can anyone have liberty? What do you think about this? Nevertheless, that is what the Court said—double jeopardy protection was just not important enough to be incorporated by the Fourteenth Amendment to apply to the states. Frank Palko was electrocuted in April of 1938.
The Constitution does not always mean what it seems to say—where Frank Palko ended up
after the U.S. Supreme Court decided that protecting the accused from double jeopardy in state legal
proceedings was not “essential to a fundamental scheme of ordered liberty.” Thirty years later the Court
reversed itself and applied double jeopardy protections to states—too late for Palko (public domain).
In 1969 in Benton v. Maryland, the Supreme Court overturned the Palko precedent. It decided that double jeopardy was indeed important and used the Fourteenth Amendment to apply it to state criminal proceedings. That did not help Frank Palko.
D. Selective Incorporation—Almost There, But Not Quite
Despite what you and I may have seen as the plain wording and meaning in the Fourteenth Amendment, the Supreme Court has never had a majority ruling that all of the Bill of Rights is incorporated, or brought in, to apply to the states. Some individual justices have made that argument, but never a majority in a ruling.
However, gradually over time, case by case, right by right, the Court has applied most of the rights under the Bill of Rights to the states. Legal scholars use the term “selective incorporation” to describe this long process. Over history the Court has applied all the rights in the first ten amendments to all the states except the protection against quartering troops (in the Third Amendment) the right to grand jury indictment (the Fifth), and the right to trial by jury in civil cases (the Seventh).
IV. Some Key Areas of Rights and Liberties
Most American government texts go into a great deal of detail in discussing civil rights and liberties in a range of areas. The questions in all of these areas involve what the words of the Constitution mean when applied to very specific governmental actions or laws. Because new cases are being heard all the time that alter interpretations, textbooks need to be updated almost every year for some area of rights. This poses a problem in trying to write a text that is designed to minimize the need for updating. How can we talk about areas of rights without giving all the latest cases?
Here is how I shall attempt to accomplish this difficult task. I will still cover several major areas (see the outline for this chapter). However, rather than give you all the latest cases, I shall talk about a few very important cases in the past and the alternative ways in which the Supreme Court might interpret the Constitution in the future. If you want the very latest case, simply search the Web under the right or liberty in question.
A. First Amendment Rights and Liberties
By now you should know what’s in the First Amendment. Because it is the first one, the courts have tended to take these protections and limits on what government can do more seriously than some of the rights in other amendments. For example, as noted earlier, the Court incorporated first amendment free speech rights in the early 1900s well before it incorporated rights in criminal proceedings. For each of the rights in the First Amendment, the Court has devised rules to help it judge whether government action is or is not in violation of each right. Down through time these rules sometimes change. Let’s discuss the rights in the First Amendment in the same order in which they are listed. So we will start with religion and end with assembly and petition.
1. Religion—Two Parts
As we noted earlier, the clause on religion has two parts, the establishment clause and the free exercise clause. The courts have treated them separately. So we shall do likewise.
First Amendment begins: “Congress shall make no law respecting an establishment
of religion…” The critical word in this is “establishment.” Establishment of
religion might be interpreted two different ways. One
interpretation is that all this prohibits is an official state religion.
The Founders certainly did not want to have anything like the Church of England
St. Nicholas Church of England Church and other Anglican Churches are tax supported in Great Britain,
a practice that cannot happen in the United States because of the “no establishment” clause
in the First Amendment (Photo by Howard Quinn, Creative Commons).
If no official state church is all the establishment clause means, then government can get involved in aiding and helping religions as long as none are an official state religion. Teachers could lead students in prayer in public schools, government could grant scholarships to religious schools and help them build facilities, and officials could place religious displays on public grounds to promote religion.
If you think about all this, you might wonder whether these kinds of activities are really just another way of “establishing” a religion. That takes us to the second interpretation, the “wall of separation” interpretation of the establishment clause. Under this interpretation a clear wall of separation must exist between government and religious institutions. Any entanglement between government and religion would violate this interpretation.
Pretty good historical evidence exists that this kind of more complete separation is what at least some of the Founders may have wanted. Both Jefferson and Madison used the phrase “wall of separation” in talking about the relationship between government and religion in the context of the first amendment.
In many decisions the Supreme Court also has used this phrase. The trend in court rulings has been in the direction of “the wall of separation” interpretation. A number of Supreme Court rulings have prohibited public school teachers from leading students in prayer, or even students leading organized prayers at school functions, like football games. Does this mean that all prayer in public schools is banned? No. As the joke goes, prayer will always be in schools as long as schools have algebra tests. The joke captures an often overlooked aspect in the school prayer controversy, that private individual prayer is not prohibited.
However, this wall of separation has many gaps in it, some by way of court rulings and some by common practice in communities. Schools and students often skirt the impact of the ban on organized student-led prayer by having unorganized “spontaneous” student-led prayers, such as sports teams gathering together before games and bowing their heads.
Spontaneous team prayers led by students in public schools are generally not considered to be in violation
of the no establishment of religion clause in the First Amendment (photo by Bill Andrews, Creative Commons).
The Supreme Court has used the term “excessive entanglement” to prohibit some practices, but then allowed other practices, such as the government buying secular textbooks for religious schools. The Court reasoned that secular textbooks, unlike religious textbooks, do not involve “excessive entanglement.” The Court allows religious displays if they are not designed to promote religion but are part of a larger historical display. So the intent of public officials may influence whether or not a specific practice violates the establishment clause.
How high should any wall of separation be? This is a complex question that will be debated as long as we exist as a society. If you are religious and a member of the dominant religion in your community, you may feel that the government is being anti-religion when it prohibits a religious Christmas pageant in your public elementary school. On the other hand, suppose you move to a community where you are suddenly a member of a tiny religious minority. Suppose the majority wants to have pageants that celebrate their beliefs. You might suddenly feel more warmly toward a higher wall of separation that keeps your children from being subjected to what you see as religious propaganda. As the old saying goes, where you stand depends on where you sit.
The Supreme Court is unable to help us with a clear set of general rules because they have been rather evenly divided in recent years. When they are evenly divided, we will see a lot of five to four rulings that turn on tiny details in what was done by whom for what purpose.
b. Free Exercise
While you are allowed to hold any religious belief you like, that does not mean that you can engage in any religious practice you like. As we have seen and will see, the literal wording of the first amendment does not help us much in understanding what we can and cannot do under the “free exercise” clause. It says that “Congress (and now the states by way of the Fourteenth Amendment) may pass no law…prohibiting the free exercise thereof” (referring to religion).
Interpretation of what these words mean is critical. For example, what counts as a religion? The Supreme Court has gradually expanded what counts as religion. While once religion had to involve belief in a supreme being and was restricted to religious groups that had long historical standing, any sincerely held belief system now has religious standing. Therefore, even an atheist can claim to have “religious” beliefs that would be violated if he or she was drafted to fight in a war. On the other hand, the courts have not recognized sham religions that people create to claim some benefit that the members want, like the legal right to smoke pot as a religious exercise or to have steak and beer as a regular part of a religiously required diet when in prison.
Interpretation is not the only problem. What happens when a religious practice conflicts with other laws? Suppose you believe that the only form of acceptable medicine is prayer. That is fine as long as you choose to turn down medicine that is prescribed for you. But what about medicine, vaccinations, or surgical procedures for your underage children? In these cases the courts generally side with the interest of society in protecting children over the religious beliefs of parents. But sometimes the courts side with the parents, especially if the practice in question does not pose a grave threat and has some strong historical precedent. Amish parents are allowed to violate school truancy laws because of their long-standing practice of working in family enterprises at an early age.
Even though some religions may reject medical vaccinations, courts have ruled that requiring
vaccinations for school attendance does not violate the free exercise clause of the First Amendment—public
safety and the welfare of children trump parental religious beliefs (U.S. government photo, public domain).
A guideline that the courts seem to generally follow is sometimes called the “secular regulation” rule. The Court allows laws that may interfere with religious practices so long as those laws have a secular purpose. This means that the laws have a legitimate non-religious purpose, not a purpose that is aimed at restricting a religion.
States may pass laws restricting the public handling of dangerous snakes in religious ceremonies without
violating the free exercise clause of the First Amendment because of the “secular regulation rule” that places
legitimate concerns for public safety over religious practices (1946 U.S. Government photo, public domain).
The Court has gone back and forth on the secular regulation rule. In 1990 the rule was undermined by a case involving Native Americans using hallucinogenic drugs, peyote, as part of their religious practice (Employment Division v. Smith). This use had generally been protected before this case, but the new ruling ended that protection. In response to this ruling, Congress passed and President Clinton signed into law the Religious Freedom Restoration Act. This law attempted to turn the secular regulation test into law. The government would have to prove that any restriction of practice had a “compelling state interest” and the restriction pursued that interest in a way that least restricted religious practice. The Supreme Court responded by overturning part of that law, stating that Congress had gone too far in trying to impose an interpretation of the Constitution on the courts (City of Boerne v. Flores, 1997). This was clearly a checks and balances decision pitting one branch against the other two. But a few years later the Court quoted the compelling state interest idea again in ruling against government prosecution for using illegal drugs in a religious ceremony (Gonzalez, 2006).
The second phrase in the First Amendment, following the religion phrase, refers to speech: “Congress shall make no law…abridging the freedom of speech.” But alas, Congress has passed many laws abridging speech. So clearly “no law” does not really mean no law.
The Federalist-dominated Congress passed and Federalist President John Adams signed into law the Alien and Sedition Act of 1798. The administration was losing popularity and was under attack for its conflicts with our former ally, France. The new law allowed the government to expel any alien who criticized the government and fine and imprison any citizen who engaged in similar action.
…if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute…
government found citizens guilty under this broad law and imprisoned them.
Thomas Jefferson and his political allies strongly opposed the law and thought
it to be unconstitutional on a variety of grounds. After
The Alien and Sedition Law clearly violated first amendment speech rights,
showing that Congress could and did pass laws abridging free speech, though
the laws were later repealed and persons imprisoned freed (public domain).
The Supreme Court has made many rulings about when speech is protected and when it is not. It has set up rules by which it judges the constitutionality of various kinds of speech. One of the most famous tests is the “clear and present danger test,” which came out of a ruling in 1919 (Schenck v. U.S.). Schenck had been prosecuted under a law passed by Congress that forbade any expression that undermined the defense of the nation. The Supreme Court said that laws aimed at speech must show that the speech in question presents a “clear and present danger” to the nation. It found that the anti-draft leaflets distributed by Schenck did present such a danger, and it upheld his conviction. Remember, this was in the atmosphere of the world war that was taking place. Justice Oliver Wendell Holmes, who wrote the decision, used an analogy, saying that such speech was like yelling “fire in a crowded theater.” The case had nothing to do with fire, but the point is that any law had to account for the context of the speech. The law would be constitutional only if it was aimed at speech in situations that posed some obvious and imminent danger.
The Supreme Court generally considers how laws that restrict speech take into account the context of speech,
so speaking to a large crowd, like shown in the picture above, may pose more public danger than speaking to a
few people—the Court has shifted over time on whether that danger must be highly likely or just possible (public domain).
Since that time the Court has gone back and forth on how much government can restrict speech. A few years after Schenck, the Court allowed more restrictions by moving to a rule that said laws could restrict speech if it created a “bad tendency.” Government could restrict almost any speech under this rule as long as the expression could conceivably do some kind of harm. This was during a “red scare” when the nation was fearful of Communist uprisings.
Later during the early 1950s when another red scare was taking place across the nation, the Court redefined “clear and present danger” by saying that “present” did not really mean immediately present. The Court allowed restrictions on speech that posed some danger in the not so distant future.
As the scare passed, the Court moved back to give more protection to speech. It reinterpreted the clear and present danger test. Now the government had to show something more difficult for the restriction to be constitutional. It had to show that the
advocacy of the use of force or of law violation (could not be prohibited) except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg v. Ohio, 1969).
Under this rule, sometimes called the “grave and imminent danger” rule, someone could advocate the overthrow of government as a theory and even talk about it, so long as the speech was not likely to actually result in serious dangers that would happen relatively soon.
Symbolic speech or actions are treated by the Supreme Court much the same as spoken or written words. But sometimes when actions come into conflict with other governmental obligations, the Court has allowed prohibitions to stand. For example, during the Vietnam War, protesters often burned their draft cards. The Court did not protect that symbolic speech because burning draft cards interfered with providing a national defense, an important responsibility of the government.
Burning the American Flag, or a representation of the flag as in this picture, is a form of
symbolic speech protected under the First Amendment in several Supreme Court rulings—the
logic of these rulings is that the right is more important than the flag, which is a symbol of that right,
so to protect the symbol undermines the right itself (public domain).
On the other hand, if the symbolic speech is merely offensive and has a political content, the Court has generally protected it. The Supreme Court has consistently struck down laws that prohibited the burning of the American flag. It overturned the arrest of a young person wearing the words “F__k the Draft” on his clothing. It even upheld the right of school children to wear black armbands to school in protest of the Vietnam War so long as school officials could not show that the armbands would be disruptive.
All of this involves political speech. But what about speech that is not political in nature? What if speech is simply thought to be obscene? Obscenity is not considered to be speech by the courts, so obscenity has no first amendment protection. That seems simple enough.
The problem is that we have to define obscenity and then decide what is and is not obscene. This is a problem that the courts have wrestled with for a long time. They have never found a simple objective definition. Perhaps obscenity is like beauty, in the eye of the beholder.
In writing a concurring opinion that discussed the problem in defining obscenity, Supreme Court Justice Potter Stewart said “I know it when I see it.” He later said that if he could change one thing in his entire career on the Court, he would not have used that phrase, because that is the phrase for which he would be remembered. He would rather have been remembered for the weightier decisions he authored. But alas, his fears were well-founded, because this is the only time we will mention him in this text.
Nevertheless, his point is valid in light of the failure of the Court to ever devise an acceptable, workable definition that gave clear guidance as to what material is and is not obscene. No matter how hard the Court tried, it inevitably had to examine the material and see for itself! Supreme Court clerks would joke about “dirty movie day,” when the Court had to look at films in deciding whether or not they were obscene.
important decisions stand out in the last half century in the Supreme Court’s
quest for a clear definition. In Roth v.
The second decision came later when the membership on the Supreme Court had become more conservative. In Miller v. California (1973), the Court changed two of the tests that flowed from Roth. Local communities could decide for themselves rather than have national standards. And the material only had to lack “serious literary, artistic, political, or scientific value.” The immediate result was that local communities began to ban all kinds of things. Publishers and producers faced a nightmare in knowing what they could or could not produce, and once again the Court had to look at a lot of questionable books and movies. Most were found to have serious value.
Cover of a 1910 American edition of Fanny Hill, a British novel that had a long
history of being banned in the U.S. and elsewhere, but which was eventually allowed on the
grounds that material in the book did not meet the standards of obscenity because it did
have some literary and artistic value (public domain).
Today most places have pretty much given up trying to write laws that directly ban obscenity. The trend has been to control places that distribute such materials through zoning. However, these efforts are not very effective because the rise of the internet has made obscene materials from across the globe available to anyone with a computer and access to the Web.
Clearly obscene materials, such as child pornography, may still be prohibited by law. But what about the production or possession of child pornography by computer animation where no real children are involved? The courts threw out a section of a national law that extended the definition of child pornography to computer animation because no real harm to real children is involved and the government could not show a real connection between such material and illegal acts by pedophiles (Ashcroft v. Free Speech Coalition, 2002).
Free speech rights do not protect anyone from engaging in libel or slander against someone else. Libel refers to printed speech and slander to spoken speech that is false and harmful. However, in the interests of maximizing political speech, the courts have treated the people who may be harmed differently depending on whether they are private persons or public figures. If you are a private figure who is not running for office or who makes a living off celebrity status, all you must show to win a libel or slander suit is that the statements were false and they harmed you. On the other hand, if you are a public figure, you must also show that the person making the statements did so with malice, which means having the intent to harm you. That is hard to show in a court of law. The result is what you see at the grocery store checkout—all kinds of obviously false stories about well-known celebrities, usually concerning something about their bodies, offspring, or relationships with other peoples’ bodies. This also means that politicians cannot stifle criticism by effectively threatening to sue whenever they get criticized. In effect, we put up with some falsehoods to have free and open political speech.
Public figures have less protection than private figures, because to win a libel suit
they must prove “malice,” or intent to harm. But when does someone cross the
line between private and public life? Pictured here in a colorized 1945 U.S. Army photo for
YANK magazine, is Norma Jean Dougherty (born as Norma Jean Mortenson), who later became
famous under her professional name, Marilyn Monroe (U.S. government photo, public domain).
One last area that falls under speech is loyalty oaths. Can government require citizens to engage in speech that pledges loyalty or respect for the nation or its symbols? Can the government deny public employment to those who refuse to do so? Can they be denied access to public facilities, such as schools? As in other areas, the courts have shifted positions, generally allowing such oaths during the red scares in the period after WWII, but then moving in the direction of overturning most oaths since the 1960s.
Saying the Pledge of Allegiance and saluting the flag combines symbolic and spoken speech. In the years leading up to and into WWII, many schools required that students do both. Refusal was punishable by expulsion. The Supreme Court upheld this requirement in a 1940 case. But after some changes in the membership of the Court, the Court reexamined the question in 1943 (Barnette v. West Virginia State Board of Education). It overturned the expulsion of some Jehovah’s Witness children who had refused to salute or pledge on religious freedom grounds because they saw the exercise as “bowing down to a graven image.” The Court rested its majority decision on both speech and religious freedom grounds and expressed the opinion in rather strong words:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
Schools may not require that children recite the Pledge of Allegiance on two First
Amendment rights, speech and religious freedom (U.S. Navy photo, public domain).
As in the case of speech, the phrase stating that “Congress shall pass no law…abridging the freedom of…the press” has not been interpreted literally by the government. “No law” does not mean no law. Many times throughout history the government has tried to prevent the press from publishing materials. The term that applies to any law that prohibits publication of material is “prior restraint.” But the government has had less success in restraining the press than it has in restraining individual speech.
decisions are important here. In Near v. Minnesota (1931), the Supreme
Court ruled that a
Front page of the newspaper that openly attacked Jews, Catholics, labor unions, and blacks,
which the state of Minnesota attempted to stop using “prior restraint”—but the Supreme Court
allowed publication under the free press rights in the First Amendment (From Wikipedia,
copyright likely lapsed, but “fair use” regardless in the opinion of Wikipedia).
In the middle of the Vietnam War another case arose. In 1971, a set of papers called the Pentagon Papers were leaked to the N.Y. Times. These papers were a compilation of the history of decisions made and studies done by the government that led to our involvement in that war. The Secretary of Defense ordered this study in the late 1960s. Ironically, the leak came from someone who had worked in the Defense Department in compiling the papers, Daniel Ellsberg. Ellsberg had turned against the war and felt that the papers clearly showed that the government was ignoring its own findings about the war. President Nixon ordered the Justice Department to stop publication on the grounds that publication would endanger national security by revealing critical classified material. The Supreme Court examined the papers, concluded that the only danger was political embarrassment, and allowed publication. The government could still prosecute Ellsberg for leaking classified materials, but the materials could be published.
The important principle that came from this case was that the government could use prior restraint to prevent publication, but only if it could demonstrate that such publication would harm national security. It failed to do so in this case. So the bottom line is that the government can restrict the press, but only if national security is at stake.
WikiLeaks protester, who equated the leaks of secret State Department cables in 2010 with the
Pentagon Papers leaks of the 1960s. Legally the cases were somewhat different in that the leaks of the
Pentagon Papers were allowed to be published in newspapers because the Supreme Court prohibited prior restraint
on the grounds that the content did not endanger national security. WikiLeaks were published online from outside
the U.S., so any attempt to restrict publication was impossible. No legal action to stop publication took place in the U.S.,
and the courts did not make any determination about endangering national security. However, efforts were made to capture
and punish those responsible were made, as they were to punish Daniel Ellsberg for leaking the Pentagon Papers— charges
against Ellsberg were dropped because of government misconduct (photo by Max Braun, Creative Commons).
4. Assembly and Petition
right of assembly for the purpose of asking for political change, or what is
sometime called “free association,” also has a rather spotted history of
protection. Organizations considered communist were the targets of government
bans. During the civil rights movement, southern state government targeted the
B. Second Amendment—the Right to Bear Arms, Individual or Collective?
you visit the National Rifle Association building in
These two phrases allow drastically different interpretations. Does the amendment apply only to arms owned by people in well-regulated militias? Or does it apply to private individuals, or to both?
Another question is what is meant by arms? To the Founders, arms would have included muskets, swords, and perhaps cannon. Weapons we have today go well beyond anything they could have imagined. Do people have the right to fully automatic weapons? Rockets or even missiles? Bombs? Where can government draw the line?
the summer of 2008, the Supreme Court ruled on a case that challenged
Memorial for the slain--the horrific mass murder of 20 young children and 6 staff at Sandy Hook school in
Newtown, Connecticut, in December 2012 led to new proposals for regulations on the sale and ownership of guns—the
courts would have to determine if any new regulations passed were reasonable under the Second Amendment
right for individuals to have arms (Voice of America photo, public domain).
You should be able to guess what will follow this ruling, especially after well-publicized mass shootings in public places and schools. Existing and new national, state and local government regulations on weapons will result in other cases to see what is “reasonable.”
C. Criminal Justice and Rights of the Accused—Amendments IV, V, VI, and VIII
Sorting out all the rights and cases pertaining to our criminal justice system can be overwhelming. I will try to simplify all the rules created by the courts by thinking about them in terms of two different models of justice: a crime control model of justice and a due process model of justice. The question we shall ask about all the court rulings is which model of justice the Court is moving toward in a particular ruling. Let’s start by talking about the two models.
The crime control model of justice places the most emphasis on identifying, catching, and punishing anyone engaging in illegal behavior. To achieve this goal, courts would give government a lot of powers and place few restrictions that might get in the way. The up side is that most lawbreakers will be caught and punished. The down side is that innocent people will often be inconvenienced and sometimes unjustly punished. But that is the price we would pay for maximizing the percentage of lawbreakers who are caught and punished.
The due process model of justice emphasizes making sure that we do not unjustly inconvenience or punish the innocent. So police and the rest of the criminal justice system would be forced to follow very strict procedures to ensure that they do not harm innocent people—even if this means that some of the guilty get away. Inevitably some would. You see the tradeoff.
Ideally we would like to have it both ways. But that is not possible. Perhaps it would be possible if we had perfect police, prosecutors, and people running the courts. But we do not. So we have to decide how much we will go in one direction or the other. For each right and each case, we can see that the courts are moving toward one model or the other. Put another way, we see where the courts are trying to move the balance point between these two models.
Let’s start with the protection against “unreasonable searches and seizures” in the Fourth Amendment. If we wanted to catch as many lawbreakers as possible, we would let the police search any person or place at any time. We would not require warrants based on evidence and not even require police to identify themselves, because that might allow lawbreakers to destroy evidence before police found it (“no-knock” searches).
The courts have gone back and forth. The courts have not allowed federal investigators to use evidence that has been illegally obtained since the early 1900s. Not allowing government to use evidence that was improperly obtained is called the exclusionary rule. Having this rule clearly is in the direction of the due process model. But up until the 1960s the courts placed few restrictions on how state authorities obtained evidence. And most criminal cases are at the state level. The liberal Supreme Court led by Chief Justice Earl Warren extended the exclusionary rule to the states in Mapp v. Ohio (1961), moving the balance further toward the due process model. This is another example of selective incorporation, which we covered earlier in this chapter.
rulings by the
“Scottsboro Boys” and their lawyer in 1932—originally sentenced to death, their appeal eventually led to
extending the right to counsel to capital crimes in all states (unknown photographer, may be under copyright,
but believed to be allowed under fair use by Wikipedia, source at http://www.law.umkc.edu/faculty/projects/ftrials/ftrials.htm).
the decades that followed this move in the due process direction, several
things happened. The police adjusted their practices, became more professional,
and for the most part began to better protect rights. Of course,
A series of rulings since the 1980s have moved the balance back in the crime control direction. The Supreme Court allowed exceptions to the exclusionary rule. If evidence was not legally obtained but would have been later discovered in a legally admissible way, it was allowed to be used under what is called the “inevitable discovery” rule (Nix v. Williams, 1984). Another ruling allowed police to use evidence when an unintentional error was made, the “good faith” rule (United States v. Leon, 1984). The Court has also ruled that the exclusionary rule does not apply to what it called “secondary evidence,” that is, evidence that is found because of excluded primary evidence (People v. Stith, 1987), or to evidence obtained from third parties not being prosecuted. In a 2006 decision (Hudson v. Michigan), the Supreme Court came close to throwing out the exclusionary rule altogether. This case involved a “no-knock” search, which normally violates Fourth Amendment protections against unreasonable search. The Court concluded that the social costs of crime outweighed the protections against unreasonable search when the police had a reasonable fear that identifying themselves might allow evidence to be destroyed or even endanger their lives. In the area of the death penalty, the Court has allowed laws to impose the penalty when the sentencing phase of the trial is separated from the fact-finding portion of the trial.
this movement toward the crime control model, the courts have made a number of
rulings that fit changing public standards of acceptable punishment in the
State of South Carolina mug shot of George Stinney, age 14, executed in 1944 by the state of
South Carolina for the crime of murder after conviction in a two and a half hour trial with a ten minute
jury deliberation—the youngest person to have been executed in the U.S. in the 1900s. In 2005 the
Supreme Court ruled that any executions of juveniles are unconstitutional as “cruel and
unusual punishment” (low resolution photo from University of Albany National Death
Penalty Archives, believed to qualify for fair use by Wikipedia).
D. Ninth Amendment—Other Rights “Retained by the People”
At the beginning of this chapter we discussed the difficulty in interpreting this amendment, which refers vaguely to other rights that are “retained by the people.” The Founders wrote the amendment because they feared that a listing of specific prohibitions in the previous amendments might be used to expand the national government power. They thought government might argue that it could do anything that was not specifically prohibited in the first eight amendments. So they added the amendment to prevent the Bill of Rights from having the opposite effect than what they intended.
But what are those “other” rights? Despite difficulties and controversies in interpretation, the Supreme Court has found at least one other right. And they may find others in the future.
1. Privacy—Sexual Matters and Abortion
The Supreme Court has found that a right to privacy exists within the Constitution, even though you will not find the word “privacy” in the document. Exactly where that right comes from is a matter of controversy and debate. Nevertheless, if you ask most Americans about a right to privacy, they will enthusiastically claim that they have such a right.
first important case in which the Supreme Court “discovered” a right to privacy
involved an 1879
The famous Roe v. Wade (1973) case extended the right to privacy to a woman’s decision to have an abortion in consultation with her doctor. However, the case did not make that right unlimited. At the point at which the fetus could survive outside the womb (called “viability”), the government could take some actions to protect its life. Since then the Court has approved a growing list of restrictions that government has placed on abortion. The current rule for judging restrictions on abortions is whether the restrictions place an “undue burden” on a woman’s right to abortion (Planned Parenthood v. Casey, 1992). Of course, this rule does nothing more than transfer the debate to the meaning of what is an “undue burden.” As states pass restrictions, the Court will have to review them one by one to see. Potter Stewart’s words on obscenity might be applied here: we cannot define an undue burden, but the Court will know it when it sees it.
People protesting against abortion, which the Supreme Court protected under the right to
privacy—since then the Court has allowed states to impose restrictions on that right using
the “undue burden” test (photo by internets_diary, Creative Commons)
Court has applied the right to privacy to sexual relations among consenting
adults. In 2003 the Supreme Court struck down sodomy laws in states on
the grounds that these state laws violate personal liberty with an indirect
reference to privacy rights (
2. Emerging Rights—the Right to Death with Dignity and Same-Sex Marriage
What other rights do we have? Anyone who has had a close relative or friend who has suffered a long and lingering death from an irreversible disease has almost certainly wondered if we treat our pets more humanely than our loved human friends and relations.
1994 the citizens of
Dr. Jack Kevorkian, early advocate for doctor-assisted suicide, making a college
campus speech—Kevorkian claimed to have assisted 130 people in dying, was
convicted of second degree murder in 1999, and served a seven year sentence before
State authorities at first tried to stop the law from being enforced. They forced a second ballot question to try to overturn the first one. Voters turned down this effort by 60%. Then the national government tried to step in and prevent the prescriptions from being filled on the grounds that the drugs served no legitimate medical purpose. The case went to the Supreme Court. This time the state government took the side defending the law. Although the Supreme Court had not granted that a right to death with dignity existed in previous opinions, in Gonzalez v. Oregon (2006), the Court allowed the law to stand. However, the ruling rested on narrow grounds concerning the question of whether otherwise legal drugs could be prohibited rather than any general grounds of a right to die with dignity. More cases are sure to follow in the years to come.
Affording equal rights to marry to couples of the same sex is changing very fast. Legal change is tracking changes in public opinion. A variety of national surveys show that by the middle of 2013 support for same-sex marriage is in the middle fifty percent range, doubling support that existed in the middle 1990s. Support varies by age, with younger people supporting and older opposing, and by region, with Democratic states on the West coast and northeast coast supporting, and more Republican states in the Southeast and lower central states opposing.
President Obama changed his position on the issue in the middle of the 2012 presidential campaign after his running mate, Joe Biden, made a strong statement in support of same-sex marriage. But with national opinion changing, what had looked like a political mistake turned out to be a political advantage, energizing the youth vote and liberal groups who had been less than enthusiastic Obama supporters before this change.
Then in June 2013 the Supreme Court handed down two decisions that supported same-sex marriage. The more dramatic and clear victory for supporters of change was in the case that challenged the national Defense of Marriage Act (DOMA), which defined marriage as only between a man and a woman, Windsor v. United States (2013). DOMA had denied all marital benefits under federal laws to people of the same sex. For Edie Windsor, this meant over $369,000 in federal inheritance taxes on the estate of her long-time partner whom she had married in Toronto and cared for over many years of declining health. In a 5 to 4 ruling, the Supreme Court said that no rational reason existed for the national government to deny equal protection and due process rights that exist for all Americans in the Fifth Amendment. The majority decision, written by swing vote Justice Anthony Kennedy, referred to denial of healthcare benefits, bankruptcy protections, the right to be buried together in military graveyards, and the psychological damage to children of same-sex couples suffering humiliation.
The decision left in place the part of DOMA that allows states to refuse to recognize marriages performed in other states—at least for now. Since the decision, the national government has said that regardless of where married same-sex couples live, they can be treated as married under federal tax law. This requires states that do not recognize same-sex marriage and tie their income taxes to federal returns to have to require married same-sex couples to create separate federal forms in order to file state forms. This burdensome situation will almost certainly stimulate more legal challenges.
Another 2013 decision, Hollingsworth v. Perry (2013), raises further questions about the constitutionality of state laws banning same-sex marriages. California voters had narrowly passed (52%) a state constitutional amendment in 2008 that banned same-sex marriage, which had been legal for several months following a California state court ruling that overturned state law banning same-sex marriage. This led to a challenge that the amended state constitution violated the equal protection and due process clauses of the Fourteenth Amendment. In 2010 a federal district court agreed with this challenge. At that point the state government decided not to appeal, but opponents of same-sex marriage took over the case and appealed. They lost in the federal circuit court of appeals. Then they took the case to the Supreme Court.
Here is where the ruling gets interesting, especially in light of the DOMA ruling, which came down at the same time. The five to four decision was not along the usual ideological lines. This time swing vote Anthony Kennedy, who wrote the majority decision in Windsor, was on the losing side. He was joined by two conservative justices and by normally liberal justice Sonia Sotomayor. Two conservatives and three liberals formed the majority. They ruled that those citizens who stood in for the state government to appeal the case did not have “standing,” which means that they were not injured by the district court ruling, so they had no right to make the appeal. This left the district court ruling in place—that the amendment violated the Fourteenth Amendment.
The Hollingsworth decision only applied to California. But does the logic of the district court decision, and more importantly the logic of the Supreme Court’s decision in Windsor, mean that the laws in states that do not allow or recognize same-sex marriage also violate Fourteenth Amendment due process and equal protection principles? These are the same principles found in the Fifth Amendment that a majority of the Court used to overturn limits in DOMA. We shall see.
Same-sex civil marriage legal
Civil unions granting privileges similar to marriage for same-sex domestic partners
Legislation granting limited/enumerated privileges
No state-wide prohibition or recognition of same-sex civil marriages or unions
Statute bans same-sex civil marriage
Constitution bans same-sex civil marriage
Constitution bans same-sex civil marriage and specified or unspecified civil union types
States and legal status of same-sex marriage as of August 2013
(Wikimedia Commons, no restrictions)
E. Civil Rights of Groups—Individualism Both Promotes and Limits Civil Rights
political struggle for equality of all groups is long and complicated and as yet
incomplete. The story differs depending on the group in question. Over history
these groups have included African Americans, who have spent well over a
century achieving the promise of full citizenship and voting rights after the
passage of the Thirteenth, Fourteenth, and Fifteenth Amendments. The groups
include women, who gained the right to vote in 1920, but still struggle to
achieve full parity in the workplace or in the halls of government. They
include gays and lesbians, who struggle for respect, physical protection from
those who hate them, and the right to have legally recognized relationships so
that partners could be covered in family health insurance plans or have
inheritance rights. They include anyone who has even the faintest appearance of
being Middle Eastern, who get stigmatized as a possible terrorist. They include
those who appear Hispanic and find themselves treated as illegal aliens, even
though their ancestors may have lived as full citizens in the
President Obama paid tribute to three major civil rights movements in his 2013 Inaugural Address:
“We, the people, declare today that the most evident of truths – that all of us are created equal – is
the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and
Stonewall,” referring to the birthplace of the women’s rights movement, the march for the right to
vote, and the gay bar in New York where gays fought police beginning their movement to claim
respect and equal treatment (U.S. Government Photo, public domain).
To even scratch the surface of these many struggles is well beyond the scope of this course or the time and space we have in this brief text. Can we think of an explanation to help us understand why so many groups have had so much trouble in securing full equality in a nation that supposedly rests on the legal and political equality of all people? I think so.
The explanation comes in the form of another paradox. The bedrock American value of individualism cuts in two directions. First, it undermines claims for advantage by historically dominant groups—males and white Anglo-Saxon Protestants. Second, individualism also limits civil rights programs aimed at righting historical wrongs done to disadvantaged groups. Our devotion to individualism explains why affirmative action programs are faltering, and why reparation, whether it be to African Americans or to Native Americans, is a political nonstarter.
Let me explain. One of the most basic beliefs that all Americans share is that of individualism. We believe, at least in theory, that each person should be judged as an unique person and succeed or fail on their own. A major idea in Reverend Martin Luther King’s “I Have a Dream” speech was that all “children would be judged on the content of their character rather than the color of their skin.”
Reality has always fallen far short of this goal. Groups with advantages have found a multitude of ways to protect and defend those advantages, even when those advantages undermined the ideal of individual merit. Throughout American history, white males of Western European descent have justified their advantages on grounds of racial superiority, on interpretations of the Bible, on theories like Social Darwinism (look this one up on the Web), on the supposed superiority of Western European culture, and on grounds of freedom from government and even freedom from taxes. Why taxes? Taxes might be used to create government programs to provide equal opportunities to the less advantaged, whether it be in the area of education, childhood nutrition, or health care. But while some programs to help move us toward equalizing opportunity do exist, they all fall short of creating truly equal opportunity across society. The proof is in what you know to be true in everyday life. You have all heard the saying, “It’s not what you know—it’s who you know.” To the extent that this is true—and most of you know this to be true—we fall short of basing success on individual merit.
Yet if you consider the broad long-term trends in American history, despite the economic and political power that favored groups still have, they are fighting a long-term losing battle. When group advantage comes into conflict with the bedrock value of individualism, individualism eventually wins out. It may take a very long time, generations of struggle, but individualism wins out. So even though the Founders almost certainly were thinking of white European males when they said that “all men are created equal” in the Declaration, males and females of all ethnicities and sexual preferences eventually did claim the right of individual equality, even though the battle is yet to be completely won.
The political system has passed a wide range of laws to move toward equality. African Americans were granted equal access to public facilities such as hotels and restaurants by the Civil Rights Act of 1964. The key limit here is “public.” You should know that equal access laws do not apply to private groups, which may discriminate based on the first amendment right of free association. For example, the Court has allowed the Boy Scouts to deny membership to gays. Augusta National Golf Club legally denied membership to African Americans (until 1990) and women (until 2012) for most of its existence, only giving in after considerable public pressure, not legal pressure.
The Boy Scouts, as a private organization, can discriminate if they
wish—they have accepted members of different ethnic groups as seen
in this early 1940s photo, and have recently accepted gay members, but not yet gay adult leaders
(U.S. Farm Administration photo, public domain).
The Voting Rights Act of 1965 finally enforced the right to vote that had been promised by the Fifteenth Amendment nearly a century before. Most schools were desegregated, though that task is still incomplete with white flight to private schools and to the less racially mixed suburbs.
Women can no longer be fired for being pregnant (the Pregnancy Discrimination Act of 1978). They must be given equal pay for doing the same jobs as men (the Equal Pay Act of 1963). Sexual harassment is prohibited by federal law (Title VII of the 1964 Civil Rights Act) and a series of court rulings, though “glass ceilings” and other informal practices still limit opportunities for females.
Anyone over the age of 40 cannot be fired for reasons related to age under the Age Discrimination in Employment Act of 1967. As baby boomers reach their senior years we can expect more activity to claim equal rights for the elderly.
The American with Disabilities Act of 1990 opened up opportunities for those with disabilities to compete in the workplace and have equal access to any public facility. This has had a considerable cost for taxpayers and private employers. Rights are not always cheap.
Elevators had to be added to subway stations, like this one in N.Y. City,
to comply with the Americans with Disabilities Act (photo by N.Y. Metropolitan
Transit Authority, Creative Commons).
As noted earlier in the chapter, sexual orientation is rapidly becoming less of an obstacle to respect and equal opportunity with changes in cultural values and court decisions, though certainly the struggle is far from over.
And the list goes on. In each case, the disadvantaged group had to engage in long-term political struggle, but they eventually made significant progress when the goal was to allow them to compete as individuals against others.
However, when the goal was to compensate members of the group as members of a historically disadvantaged group rather than to enable individual competition, political success was much more difficult. Affirmative action programs that began in the 1960s were designed to help traditionally disadvantaged groups, including minorities and females, achieve roughly proportional representation in education and employment. The idea was to take positive action to seek out and hire qualified people in disadvantaged groups to the extent that they would have about the same percentage in high level universities and jobs as they had in society.
I remember one commentator justifying these programs with an analogy involving the growth of trees. It went something like this. If you push a tree over for many years so it cannot grow straight, then to correct this you must push in the other direction for a number of years. Nice analogy, but it raises some difficult questions. How many years must you push back? What about individual trees that are not bent? Do you help the child from a successful family in a protected group over the child of a white millworker who also has disadvantages as a matter of luck of birth? At what point does trying to create equal opportunity to grow straight become preferential treatment so that some trees get helped that do not need help? Programs that seem to create group rights come into conflict with the idea of judging each person as an individual.
A diagram suggesting the problems disadvantaged children have in competing for success with
advantaged children (author deeded work to public domain, Creative Commons)
these programs grew and affected more people, politicians exploited resentment
among those who did not benefit. In a political commercial you can find on the
These resentments are well captured in public opinion polls that consistently show Americans to be supportive of programs that ensure equal opportunity to go to school and compete for jobs, but show great opposition to programs that give preference to groups in actually getting jobs or places in high status schools. To put it another way, Americans believe in equality of opportunity, but not in equality of result. Because affirmative action programs seem to move from opportunity to result, they have had a hard time maintaining political support.
In reality, the line between opportunity and result is not at all clear. Is a place in a high status school something that provides opportunity or guarantees a result? Consider two people with good scores on entry tests. Is the one with a few more points better qualified even if that person had family advantages to help get that marginally higher score? You can see why Americans are ambivalent (that is, have mixed feelings) about these programs.
A series of Supreme Court rulings on affirmative action programs capture this ambivalence and have moved the balance away from affirmative action when it seems to guarantee some group benefit. In Regents of the University of California v. Bakke (1978), Alan Bakke argued that a racially based quota for admissions to medical school allowed someone with lower scores to be admitted while he was denied admission, violating his right to equal protection. The Supreme Court ruled that quotas were unconstitutional, but that schools could still take into account race in admissions. Bakke was admitted, but affirmative action was still allowed.
how schools or businesses could take into account race or gender has been a matter
of many later court rulings. A 1995 case, Adarand Constructors, Inc. v. Pena, undercut affirmative action programs that
awarded government contracts to minority-owned firms on the presumption that
they had experienced discrimination. A pair of
A diverse group of college students—how long affirmative action programs that promote diversity in student
bodies can last is highly questionable in light of a series of Supreme Court decisions that seem to be moving
away from promoting diversity (photo by Jefferson Liffey, Creative Commons).
2006 voters in
The struggles over civil rights and liberties will continue. You can see that what the Constitution seems to say helps very little. Each generation will have to fight to claim the protection of Constitutional rights and liberties for themselves in the face of new challenges and new fears.
KEY TERMS AND IDEAS
Bill of Rights
writ of habeas corpus
bills of attainder
ex post facto law
no religious tests
procedural due process
substantive due process
property rights movment
cruel and unusual punishments
establishment of religion
secular regulation rule
Religious Freedom Restoration Act
Alien and Sedition Act of 1798
clear and present danger test
bad tendency test
grave and imminent danger rule
libel and slander
The Pentagon Papers
crime control model of justice
due process model of justice
Chief Justice Earl Warren
inevitable discovery rule
good faith rule
right to privacy
Roe v. Wade (1973)
undue burden test
Death with Dignity Act
Civil Rights Act of 1964
Voting Rights Act of 1965
Pregnancy Discrimination Act of 1978
Equal Pay Act of 1963
Age Discrimination in Employment Act of 1967
American with Disabilities Act of 1990
affirmative action programs
Possible Internet Exercises
1. Listen to several stories on National Public Radio about how our bail bond system works and decide whether it is consistent with the spirit of the Constitutional guarantees concerning bail. See: http://www.npr.org/templates/story/story.php?storyId=122954677
2. What reasons has the Supreme Court given in cases in which they failed to incorporate certain rights in the Bill of Rights to apply to the states? (The three rights not incorporated are listed in the chapter.)
3. Find the most recent Supreme Court case you can that involves the “no establishment” clause. In which direction does the decision go, the “high wall of separation” or the “no official state church” direction?
4. Find a recent court ruling that decides what kind of firearms regulations are allowed under the Second Amendment following the D.C. and Chicago handgun cases.
5. Find a recent Supreme Court decision involving rights of the accused. Is the decision more consistent with the “crime control” model of justice or the “due process” model of justice?
6. The right to marriage for gays has been in the courts in recent years (by the time you read this may have been heard by the Supreme Court). Find some the most recent cases in the federal courts and see what the reasoning was in the decisions.
7. Find the most recent Supreme decisions in Affirmative Action cases and determine whether the Court is moving away from the idea that government needs to do things to make up for past discrimination.