1. Copyright © 2012 Pearson Education, Inc. Chapter 3 Civil Liberties and Civil Rights

2. Copyright © 2012 Pearson Education, Inc. Civil Liberties and Civil Rights Antifederalist Paper No. 84, On the Lack of a Bill of Rights Constitutional Background Gideon v. Wainwright, 372 U.S. 335 (1963) The Nationalization of the Bill of Rights: The Fourteenth Amendment Oliver Wendell Holmes, The Need to Maintain a Free Marketplace of Ideas, Abrams v. United States, 250 U.S. 616 (1919) Freedom of Speech and Press

3. Copyright © 2012 Pearson Education, Inc. Civil Liberties and Civil Rights New York Times Co. v. Sullivan, 376 U.S 254 (1964) Expanding the Boundaries of Permissible Criticism of Government and Public Officials Plessy v. Ferguson, 163 U.S. 537 (1896) Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) Equal Protection of the Laws: School Desegregation Gomillion v. Lightfoot, 364 U.S. 339 (1960) The Constitutional Right to Vote Engel v. Vitale, 370 U.S. 421 (1962) The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer

4. Copyright © 2012 Pearson Education, Inc. Civil Liberties and Civil Rights Samuel D. Warren and Louis D. Brandeis, The Right to Privacy Griswold v. Connecticut, 381 U.S. 479 (1965) Roe v. Wade, 410 U.S. 113 (1973) The Right to Privacy University of California Board of Regents v. Bakke, 438 U.S. 265 (1978) Affirmative Action District of Columbia v. Heller, United States Supreme Court, 2008 Gun Control: The First Major Gun Control Case

5. Copyright © 2012 Pearson Education, Inc. Constitutional Background Topic Overview The delegates to the Constitutional Convention of 1787 were not concerned with adding a Bill of Rights to the Constitution, although they did create a committee to consider it. The Constitutional Convention was not about protecting civil liberties and rights but about creating a powerful and balanced national government.

6. Copyright © 2012 Pearson Education, Inc. Constitutional Background Topic Overview Nevertheless, Thomas Jefferson expressed a view widely held outside of the Constitutional Convention— that a major defect of the new Constitution was the lack of a separate Bill of Rights. As the ratification debates began, the Federalists promised to add a Bill of Rights as an informal condition of ratification. The following Anti-Federalist paper by “Brutus” vigorously argues that a major failing of the new Constitution is the lack of a Bill of Rights.

7. Copyright © 2012 Pearson Education, Inc. Constitutional Background Reading Antifederalist Paper No. 84, On the Lack of a Bill of Rights

8. Copyright © 2012 Pearson Education, Inc. Constitutional Background Theme A major defect of the proposed Constitution is the lack of a separate bill of rights. Our mother country England has the Magna Charta and a bill of rights, and all of the states have constitutional protections of civil rights. A bill of rights is fundamental to free governments.

9. Copyright © 2012 Pearson Education, Inc. Constitutional Background Arguments Brutus argues in this Anti-Federalist paper that all of the states have extensive bills of rights, either separately or included within their constitutions. The same protections afforded against state action should be explicitly included in the federal Constitution to prevent the national government from intruding upon fundamental civil liberties and rights. Brutus argues that a major failure of the federal Constitution was its lack of a separate bill of rights.

10. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment Topic Overview Historical evidence certainly suggests that the major invasion of rights has been by the states and not the national government. The Supreme Court, under the due process clause of the Fourteenth Amendment, used the Bill of Rights far more to curb state than national power. Gideon v. Wainwright (1963) is a capsule summary of the history of the nationalization process under the due process clause of the Fourteenth Amendment.

11. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment Reading Gideon v. Wainwright, 372 U.S. 335 (1963)

12. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment Gideon, having been charged with a misdemeanor in a Florida court, requested counsel to defend him. The request was denied by the court over the insistence of Gideon that “the United States Supreme Court says I am entitled to be represented by counsel.” Gideon then conducted his own defense, the jury returned a verdict of guilty, and he was sentenced to five years in a state prison. An appeal to the Florida Supreme Court was turned down, and the United States Supreme Court granted certiorari after Gideon filed petition with the Supreme Court for review of his case.

13. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment The Supreme Court appointed Abe Fortas to be Gideon’s counsel. The Supreme Court had already made up its mind to nationalize the right to counsel under the Fourteenth Amendment due process clause, and it selected the Gideon case from a number of possible cases for this purpose. Since the situation of Gideon v. Wainwright was, in the words of the Court, almost identical to that in Betts v. Brady (1942), in which the Court had denied the right to counsel, Gideon v. Wainwright overruled Betts.

14. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment The Court advanced the classic premise that rights that are fundamental and essential to a fair trial are obligatory upon the states under the due process clause of the Fourteenth Amendment and that the Sixth Amendment guarantee of counsel is one of these fundamental rights.

15. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment The Court referred to prior cases dealing with the right to counsel, such as Powell v. Alabama (1932), in which it was held that the particular facts of that case required that counsel be given to the Scottsboro defendants, to support its conclusion that the right to counsel was often considered essential by the Supreme Court in the past. Betts v. Brady, Justice Black argued for the Court, was a departure from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested.

16. Copyright © 2012 Pearson Education, Inc. The Nationalization of the Bill of Rights: The Fourteenth Amendment Decision Gideon v. Wainwright (1963) overruled Betts v. Brady and incorporated the right to counsel under the due process clause of the Fourteenth Amendment. In Gideon v. Wainwright (1963), the Supreme Court held that the right to counsel in criminal cases was fundamental to due process of law and therefore applicable to the states under the due process clause of the Fourteenth Amendment.

17. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Topic Overview Until the late 1950s, the Supreme Court applied Oliver Wendell Holmes’ clear and present danger test from Schenck v. United States (1919) to uphold both federal and state sedition statutes and convictions under them. Ironically, Holmes’ most famous dissent in Abrams v. United States (1919), decided just eight months after Schenck, revised his clear and present danger test to expand constitutional protection of political speech.

18. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Topic Overview Holmes’ revised formula required the Supreme Court itself to decide if the facts of the case warranted a finding of clear and imminent danger to a clear governmental interest, such as national security. His dissent did not become law until Brandenburg v. Ohio (1969). It remains a classic expression of the importance of free expression of ideas.

19. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Reading Oliver Wendell Holmes, The Need to Maintain a Free Marketplace of Ideas, Abrams v. United States, 250 U.S. 616 (1919)

20. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Theme The clear and present danger test of Schenck v. United States (1919) should require facts supporting an immediate or imminent danger to a legitimate government interest to justify suppression of First Amendment freedoms of speech and press. Schenck and all subsequent cases by the Court’s majority until Brandenburg v. Ohio (1969) upheld most instances of government regulation of expression. The Court used a balancing test that gave governmental interests in national security greater weight than individual liberty of expression in specific cases.

21. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Decision in Abrams v. United States (1919) Abrams v. United States (1919) was a decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.

22. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Decision The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and U.S. efforts to impede the Russian Revolution and advocated the cessation of the production of weapons to be used against Soviet Russia.

23. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Decision The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech test – “bad tendency” – to uphold the conviction.

24. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Dissent of Oliver Wendell Holmes in Abrams v. United States Changed his original clear and present danger test to require a demonstration of substantial imminent danger to justify suppressing the free marketplace of ideas. Holmes wrote that the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that will bring about certain substantive evils that the United States constitutionally may seek to prevent.

25. Copyright © 2012 Pearson Education, Inc. Freedom of Speech and Press Dissent of Oliver Wendell Holmes in Abrams v. United States The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.

26. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Reading New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

27. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Theme The First Amendment freedoms of speech and press overrule the common law of libel that is embedded in statutory law throughout the country, which casts a chilling effect on criticism of public officials. Public officials must prove actual malice and reckless disregard of the truth to collect damages in libel suits against their critics.

28. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Theme In New York Times v. Sullivan (1964), the Court overturned the historic common law of criminal and civil libel that was embedded in state statutory law. The opinion of Justice William J. Brennan for the Court had enormous implications for freedom of the press.

29. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Theme The common law of libel that statutory law repeated was the principal shield preventing unrestrained press and speech criticism of government and public officials in particular. The Sullivan case was indeed a watershed event in constitutional law and First Amendment jurisprudence.

30. Copyright © 2012 Pearson Education, Inc. Expanding the Boundaries of Permissible Criticism of Government and Public Officials Decision To win a libel case, a public official must prove that the libel was made with reckless disregard of the truth or malicious intent. The Court’s ruling in New York Times v. Sullivan changed the common law of libel.

31. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Topic Overview This section includes Plessy v. Ferguson and the two historic Brown decisions of 1954 and 1955 and a discussion in the notes of the important busing cases of Swann v. Charlotte - Mecklenburg, 402 U.S. 1 (1971) and Milliken v. Bradley, 418 U.S. 717 (1974).

32. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Reading Plessy v. Ferguson, 163 U.S. 537 (1896)

33. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Court’s Ruling The Fourteenth Amendment’s equal protection clause incorporates a separate but equal doctrine, which permits state segregation of the races, provided segregated facilities are equal. A state law that segregates the races on railway carriages does not violate the Fourteenth Amendment’s requirement for equal protection of the laws. The Fourteenth Amendment intended only equality of the races before the law.

34. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Court’s Ruling Plessy v. Ferguson (1896) announced racial segregation in railroad cars does not violate the Fourteenth Amendment’s equal protection clause if the facilities are separate but equal.

35. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Dissent of Justice Harlan In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.

36. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Dissent of Justice Harlan The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

37. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Reading Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

38. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Decision In the 1954 Brown v. Board of Education decision, the Court held that segregated education violates the equal protection clause of the Fourteenth Amendment.

39. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Arguments Chief Justice Warren used to overrule the separate but equal doctrine Separate educational facilities, no matter how physically equal they may be, are inherently unequal because they separate blacks from whites in such a way as to imply inferiority of the former.

40. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Arguments Chief Justice Warren used to overrule the separate but equal doctrine Such a physical separation of the races, by preventing blacks from exchanging views with white students, and getting to know white students on an equal basis, generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.

41. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Precedents Chief Justice Warren used in the Brown case to overrule Plessy v. Ferguson Cases involving higher education, such as Sweatt v. Painter (1950) are slightly different implications of segregation at the higher educational and professional school levels, from that at elementary and secondary levels.

42. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Precedents Chief Justice Warren used in the Brown case to overrule Plessy v. Ferguson Segregation in professional schools has a positively detrimental effect upon later career possibilities. Segregation at the secondary and elementary levels tends more to affect the minds and hearts of children, and this was one of the key reasons for the Brown decision.

43. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation What the Court decided about implementing its decision in the first Brown case The case merely announced that segregation is a denial of equal protection of the laws. Arguments were then solicited from the attorneys general of the states where the decision would have effect, as well as from the attorney general of the United States, to determine how the decision was to be implemented.

44. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation What the Court decided about implementing its decision in the first Brown case Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity.

45. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Significance In regard to Brown v. Board of Education (1954), the (1) plaintiffs contended that segregated public schools are not equal and cannot be made equal under any circumstances, (2) Supreme Court rejected the separate but equal doctrine of Plessy v. Ferguson (1896), and (3) Supreme Court concluded that in the field of public education separate educational facilities are inherently unequal.

46. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Reading Brown v. Board of Education of Topeka, 349 U.S. 294 (1955)

47. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Background This was the implementing decision of the Brown case, in which the Supreme Court recognized the potential political consequences of its decision.

48. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Supreme Court’s final method of implementation of the Brown decision The Court delegated to district courts the responsibility to issue desegregation decrees as cases and controversies arose before them on the issue of desegregation.

49. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Supreme Court’s final method of implementation of the Brown decision The Court remanded the cases that were involved in the Brown decision to the district courts to fashion decrees after balancing the general public interest with the interests and needs of the communities involved such as problems relating to administration, arising out of the physical condition of the school plants, school transportation, personnel, revision of school districts, and the revision of local laws and regulations.

50. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Supreme Court’s final method of implementation of the Brown decision Ultimately the implementation of the Brown decision was based upon a case-by-case process at the district court level. The result of this was extraordinarily slow progress in integration in the South until approximately 1970.

51. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation The Supreme Court’s final method of implementation of the Brown decision A decade after the Brown decision, less than 10 percent of the black pupils in the lower educational levels in the South were enrolled in integrated schools. While the Supreme Court had ordered integration to proceed with all deliberate speed, in fact it proceeded at a snail’s pace.

52. Copyright © 2012 Pearson Education, Inc. Equal Protection of the Laws: School Desegregation Significance of 1955 Implementing Decision Brown v. Board of Education (1955) held that the district courts are to implement desegregation with consideration of local problems but are to require a prompt and reasonable start toward compliance and are to act with all deliberate speed. The Supreme Court recognized that the implementation of desegregation required the solution of varied local school problems.

53. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote Topic Overview In federal elections, Article I, Section 2 of the United States Constitution provides that the House of Representatives shall be elected “by the people” every two years. The most important constitutional protection of the right to vote applies to state action, especially where states have in various ways denied the right to vote on the basis of racial classifications, most particularly where state laws have discriminated in voting against African Americans.

54. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote Reading Gomillion v. Lightfoot, 364 U.S. 339 (1960)

55. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote Background Fifteenth Amendment - Right of citizens to vote Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

56. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote The Court’s Ruling The Fifteenth Amendment forbids states as well as the national government from creating electoral districts that discriminate on the basis of race. Supreme Court held that the federal courts have jurisdiction to decide, on the basis of the facts of the case, whether or not an Alabama state law that redrew the boundary lines of the city of Tuskegee to exclude all African Americans from voting in city elections violated the Fifteenth Amendment.

57. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote The Court’s Ruling Electoral districts based on racial discrimination raise constitutional issues, giving courts jurisdiction to decide whether or not the legislative action violated the Constitution. Supreme Court accepted the facts of the original complaint as true and remanded the case to the lower federal courts for further judicial action consistent with the ruling. On remand, the federal district court in AL held that the AL law violated the Fifteenth Amendment.

58. Copyright © 2012 Pearson Education, Inc. The Constitutional Right to Vote Significance AL law implied a clear intent to discriminate on the basis of race, thus a racial classification. AL law violated the Fifteenth Amendment by denying the right to vote to African Americans in Tuskegee. Gomillion v. Lightfoot (1960) held that state action denying voting rights in municipal elections on the basis of race violated the Fifteenth Amendment. Justice Frankfurter found the complaint amply alleged racial discrimination.

59. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Topic Overview The Supreme Court has the authority to make decisions that have the effect of public policy, and that may overturn democratic outcomes in Congress and state legislatures. All of the decisions in this section reviewed state action on school prayer, the free exercise of religion, abortion, affirmative action, and racial gerrymandering, respectively.

60. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Reading Engel v. Vitale, 370 U.S. 421 (1962)

61. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer The Decision The Court held that the First Amendment’s establishment clause prohibits, as part of its ban on government sponsored religions, state- sponsored prayers in public schools. A New York State law requiring public school pupils to recite a short nondenominational prayer each day in front of their teachers violates the constitutional separation of church and state.

62. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Reaction to the Decision The Engel decision stirred all sorts of political controversy, with its opponents charging that the Court was practically equivalent to the anti-Christ. After all, In God We Trust is stamped on our coins, and Congress itself opens sessions with prayer. In the 1960s, conservative congressional leaders introduced school prayer amendments to overturn the Supreme Court’s decision.

63. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Reaction to the Decision But even though a popular majority, when asked, supported school prayer, the national political process did not translate this apparent view of an overwhelming majority into action that would have overruled the Court. The states, however, lived up to their reputation as ingenious legislative innovators by coming up with various methods to get around the Engel decision.

64. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Reaction to the Decision Moment–of–silence legislation, requiring public school classes to open their days with brief silent periods during which students could meditate or pray, was the most commonly chosen method to circumvent the Supreme Court’s school prayer ruling. The rationale was that a moment of silence per se did not require prayer and therefore did not put religion back into the schools.

65. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer The Establishment Clause The Establishment Clause states that Congress shall make no law respecting an establishment of religion. Applicable to the states under the due process clause of the Fourteenth Amendment, the establishment clause strictly separates church and state.

66. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Rationale for declaring unconstitutional New York’s program of daily classroom prayers The Engel court prohibited even the slightest connection between church and state, and thus according to the Supreme Court, the New York State prayer program violated the clause because it officially establishes the religious beliefs embodied in the regents’ prayer.

67. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Origins, Purposes, and Effects of the Establishment Clause The establishment clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.

68. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Origins, Purposes, and Effects of the Establishment Clause The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church in England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind.

69. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Origins, Purposes, and Effects of the Establishment Clause The tension between the establishment and free exercise clauses, for a strict interpretation of the former can be interpreted to dampen the latter by preventing the free exercise of religion by those who want to say their prayers in public schools.

70. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Origins, Purposes, and Effects of the Establishment Clause One of the original purposes of the establishment clause was to prevent the national government from establishing a religion that would have interfered with state-established religions that existed in several states at the time of the Constitution’s adoption.

71. Copyright © 2012 Pearson Education, Inc. The Judicial Sources of Political Controversies over Civil Liberties and Rights: The Establishment Clause and the Issue of School Prayer Majority Opinion New York’s State prayer program establishes the religious beliefs embodied in the regents’ prayer. The practice of establishing governmentally composed prayers for religious services was one of the reasons why many of our early colonists left England to seek religious freedom in America. Establishment clause stands as an expression of principle given by the founders of our Constitution that religion is too personal, sacred, and holy to permit its provision by a civil magistrate.

72. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Topic Overview The Supreme Court “found” a right to privacy in the Constitution in Griswold v. Connecticut (1965) and in the far more controversial case, Roe v. Wade (1973). The Roe decision upheld a woman’s unqualified right to abortion during the first trimester of a pregnancy and thereafter continued to limit governmental regulation of abortion under most circumstances.

73. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Reading Samuel D. Warren and Louis D. Brandeis, The Right to Privacy

74. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Theme The common law has protected individual rights to life, liberty, and property over the centuries. But common law has renewed its definitions of these rights to accommodate societal changes, and from this process a right to privacy emerged. As common law developed, legal concepts of life, liberty, and property expanded, and there came recognition of man’s spiritual nature, of his feelings and his intellect.

75. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Theme Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term property has grown to comprise every form of possession intangible, as well as tangible.

76. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Theme Common law privacy has evolved and continues to evolve in response to changing technologies (witness today the many privacy issues the Internet puts on our constitutional agenda). Privacy is not fixed in time; it is the right to be left alone; it is a right older than the Constitution and one the Anglo American legal tradition recognizes.

77. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Conclusion Warren and Brandeis observed in The Right to Privacy that privacy is not a constitutional right. The right to privacy, stated Warren and Brandeis, is above all protection against slander.

78. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Reading Griswold v. Connecticut, 381 U.S. 479 (1965)

79. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Ruling The Bill of Rights has specific guarantees, such as protection against unreasonable searches and seizures, self-incrimination, and freedom of association, that imply a right to privacy. But the right to privacy is older than the Bill of Rights and is embedded in the customs and traditions of people over time.

80. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Ruling The Connecticut law banning the sale of contraceptives to married couples violates their right to privacy, which the due process clause of the Fourteenth Amendment incorporates under liberty. Under the Fourteenth Amendment, no state can deny life, liberty, or property without due process of law. The CT law takes liberty without due process, as there is no sufficient counterbalancing state interest in the law to override the right to privacy.

81. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Justice Douglas Justice Douglas for the Court does not pluck the right to privacy out of thin air, but derives it from the penumbras of the Bill of Rights and from custom and traditions. Arguably Brandeis would agree with Douglas’ reasoning and apply his understanding of the right to privacy to void the state law. Griswold v. Connecticut (1965) found that the right to privacy was older than the Bill of Rights.

82. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Reading Roe v. Wade, 410 U.S. 113 (1973)

83. Copyright © 2012 Pearson Education, Inc. The Right to Privacy The Central Issue The central issue is whether or not the state should be allowed to impose a majority’s views concerning abortion on the individual or whether a woman should have the freedom to decide the issue on moral and religious grounds, at least during the first trimester of her pregnancy when, in the opinion of a Supreme Court majority, the state has no compelling interest that justifies regulating abortions.

84. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Ruling In Roe v Wade (1973), the Supreme Court upheld abortion as a part of the right to privacy and ruled the right to an abortion was subject to governmental regulation after the first trimester of pregnancy.

85. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun The state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient. He points out that the prevalence of high mortality rates at illegal abortion mills strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed.

86. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun Moreover, the risk to the woman increases as her pregnancy continues. Thus, the state retains a definite interest in protecting the woman’s own health and safety when an abortion is proposed at a late stage of pregnancy.

87. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun Blackmun also points out that the State has an interest in protecting prenatal life. In assessing the State’s interest, recognition may be given to the less–rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

88. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun Finds that under certain circumstances a woman has a constitutional right to have an abortion. He cites the right to privacy because the right to privacy is fundamental, it is incorporated as part of the liberty protected by the Fourteenth Amendment due process clause, which provides that no state may deprive any person of life, liberty, or property without due process of law.

89. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun He states that this right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent.

90. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun He balances private rights with governmental interests because he weighs the right of personal privacy against governmental interests in regulating abortion. Because the right to privacy is fundamental, regulation of it may be justified only by a compelling state interest, and legislative enactments regulating abortion must be narrowly drawn to express only the legitimate state interests at stake.

91. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun Blackmun then finds that the state’s interest in regulating abortion increases as a woman’s pregnancy progresses. During the first trimester of her pregnancy, a woman has an absolute right to abortion, but after that point a compelling state interest may justify regulating abortion to protect maternal life and health.

92. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Opinion of Justice Blackmun The state’s regulatory interest in abortions becomes compelling after the first trimester not because the fetus is then viable but because aborting it would constitute more than an average risk to the mother, because until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. Nowhere in Blackmun’s opinion is the fetus considered to be in any way a living human being with constitutional rights of its own.

93. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Dissenting Opinion of Justice Rehnquist The young associate justice Rehnquist, who President Ronald Reagan nominated to be chief justice over a decade later in 1986, took a strict constructionist approach to the case and adopted a strong tone of judicial self-restraint with respect to the Court’s authority to declare state laws to be unconstitutional.

94. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Dissenting Opinion of Justice Rehnquist First, Rehnquist declared that the history of Supreme Court interpretation of the Fourteenth Amendment did not require the adoption of the compelling state interest test to judge the state abortion law. Second, he declared that it was a stretch of the imagination and of proper legal interpretation to incorporate as part of the Fourteenth Amendment due process liberty, a right to privacy that supported abortion during the first trimester of pregnancy.

95. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Dissenting Opinion of Justice Rehnquist He concluded that to reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to drafters of the amendment. Abortion statutes existed in the nineteenth century, dating to an 1821 Connecticut anti- abortion law, and because the right to abortion is in no way a fundamental one, state regulatory statutes should be upheld provided they are reasonably related to a valid state objective.

96. Copyright © 2012 Pearson Education, Inc. The Right to Privacy Significance The Supreme Court’s Roe v. Wade decision has fairly been described as an example of substantive due process. Critics of the Supreme Court’s Roe v. Wade decision argue that it is an example of (1) improper judicial activism, (2) the Supreme Court acting as a super-legislature, and (3) overly loose constitutional construction.

97. Copyright © 2012 Pearson Education, Inc. Affirmative Action Topic Overview President Kennedy in 1961 and President Johnson in 1965 issued executive orders requiring affirmative action to prevent discrimination in government employment and contracting. Inevitably, as affirmative action spread and took on the new meaning of giving minorities special preferences in employment, government contracting, and university and college admissions, the practice became highly controversial.

98. Copyright © 2012 Pearson Education, Inc. Affirmative Action Topic Overview The seminal precedent–setting affirmative action decision came in the Bakke case in 1976. The University of California medical school at Davis had an affirmative action admissions program that set aside 16 out of one hundred places for minority race groups. Bakke, a white applicant whose test scores were better than those required of minority applicants, sued when the school denied him admission.

99. Copyright © 2012 Pearson Education, Inc. Affirmative Action Reading University of California Board of Regents v. Bakke, 438 U.S. 265 (1978)

100. Copyright © 2012 Pearson Education, Inc. Affirmative Action Ruling The Supreme Court held in University of California Board of Regents v. Bakke that admission programs cannot use racial quotas but can take race into account. Justice Powell in Bakke held that racial and ethnic distinctions in law are always suspect.

101. Copyright © 2012 Pearson Education, Inc. Affirmative Action Opinion of Justice Powell Under the Fourteenth Amendment’s equal protection clause, state racial classifications of any kind are inherently suspect and call for the most exacting judicial scrutiny. State university admissions policies may take race into account, but cannot use racial quotas.

102. Copyright © 2012 Pearson Education, Inc. Affirmative Action Opinions of the Nine Justices Powell, a centralist justice, held that the Fourteenth Amendment’s equal protection clause prohibits states from using racial quotas in school admissions programs but allows race to be taken into account in admissions. The conservative four justices simply held that the Civil Rights Act of 1964 prohibits race to be taken into account in any way, while the four liberal justices would have upheld racial quotas as a legitimate remedy for past societal discrimination.

103. Copyright © 2012 Pearson Education, Inc. Affirmative Action Powell’s definition of what constitutes a suspect classification Powell implied that all racial classifications are suspect, even if they worked to the advantage of minority groups and disadvantaged only a majority racial group, white males in the case of Bakke.

104. Copyright © 2012 Pearson Education, Inc. Affirmative Action Brennan’s definition of what constitutes a suspect classification Brennan suggested that a racial classification designed to remedy past discrimination should not be treated as fully suspect, but as a classification demanding an intermediate standard of judicial review that did not require the demonstration of a compelling governmental interest to sustain the classification.

105. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Topic Overview Congress in the 1930s passed two gun control laws, the National Firearms Act of 1934 and the Federal Firearms Act of 1938, aimed at criminal activity; the laws regulated and taxed “gangster weapons.” In United States v. Miller (1939) Court ruled that a well-regulated militia is connected to an individual’s right to bear arms, but gangster activities had nothing to do with a well-regulated state militia.

106. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Topic Overview Gun control politics became pervasive in the 1960s. Federal gun control laws responded to the assassinations of President Kennedy, Martin Luther King, and Robert Kennedy in the 1960s and, in the 1980s, the attempted assassination of President Reagan. States and municipalities followed suit and adopted a wide variety of gun control laws to deal with local gun violence.

107. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Reading District of Columbia v. Heller, United States Supreme Court, 2008

108. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Background District of Columbia v. Heller (2008) was a landmark case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use within the home in federal enclaves. The decision did not address the question of whether the Second Amendment extends beyond federal enclaves to the states, which was addressed later by McDonald v. Chicago.

109. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Background It was the first Supreme Court case in United States history to decide whether the Second Amendment protects an individual right to keep and bear arms for self–defense. On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia.

110. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Background The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are “arms” for the purposes of the Second Amendment, found that the District of Columbia's regulations act was an unconstitutional banning, and struck down the portion of the regulations act that requires all firearms including rifles and shotguns be kept “unloaded and disassembled or bound by a trigger lock.”

111. Copyright © 2012 Pearson Education, Inc. Gun Control: The First Major Gun Control Case Decision Prior to this decision, the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975. In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that arm for traditionally lawful purposes, such as self-defense within the home.