VI. Judicial Branch/Civil Liberties/Civil Rights1 VI. Judical Branch/Civil Liberties/Civil Rights

VI. Judicial Branch/Civil Liberties/Civil Rights 1

VI. Judical Branch/Civil VI. Judical Branch/Civil Liberties/Civil RightsLiberties/Civil Rights


A. Rule of Law v. Rule of MenA. Rule of Law v. Rule of Men1. Define Rule of Law –1. Define Rule of Law –a. society establishes regulations, a. society establishes regulations,

principles + norms coordinated by principles + norms coordinated by unbiased individuals. unbiased individuals.

b. A society of laws is ruled by laws b. A society of laws is ruled by laws because - Justice is blind, it is the because - Justice is blind, it is the arbitrator between adversaries.arbitrator between adversaries.

1) Criminal law - violation of specific 1) Criminal law - violation of specific laws that will be punished. laws that will be punished.

2) civil law - disputes between two 2) civil law - disputes between two sides, that violate statutes sides, that violate statutes (legislative decisions) or common (legislative decisions) or common laws (judicial decisions)laws (judicial decisions)


c. Participants -c. Participants -1) litigants1) litigantsa) plaintiff- the one charging v.a) plaintiff- the one charging v.b) the defendant - b) the defendant - Cegavske v. SWCTACegavske v. SWCTAc) class action suits- A group who have similar c) class action suits- A group who have similar

complaints, band together to represent all complaints, band together to represent all similarly situated.similarly situated.

d) Cases must be “justiciable disputes”- able d) Cases must be “justiciable disputes”- able to be resolved or the plaintiff can be hit with to be resolved or the plaintiff can be hit with frivolous charges and must pay the court frivolous charges and must pay the court costs. Most cases are settled “outside” of costs. Most cases are settled “outside” of court. . .a deal is made!court. . .a deal is made!

e) SIGS can assist in cases w/ e) SIGS can assist in cases w/ amicusamicus curiaecuriae - - Friend of the court” briefs!Friend of the court” briefs!

f) Lawyers - Difficult to participate in the f) Lawyers - Difficult to participate in the Judicial drama without a lawyer. It’s a game Judicial drama without a lawyer. It’s a game of laws that lawyers must interpret!of laws that lawyers must interpret!


A2. Federal level - Judicial BrA2. Federal level - Judicial Br- Art III - . . . judicial pwr shall extend to all cases, - Art III - . . . judicial pwr shall extend to all cases,

in Law + Equity. . and vested in one Supreme Ct in Law + Equity. . and vested in one Supreme Ct + in such inferior courts.+ in such inferior courts.

3. The cases: (page 510) 3. The cases: (page 510) a. application of the Constitution, fed law, or fed a. application of the Constitution, fed law, or fed

treaty.treaty.b. interpretation of the Constitution, fed law or b. interpretation of the Constitution, fed law or

fed treaty.fed treaty.c. admiralty + maritime lawsc. admiralty + maritime lawsd. US, fed gov’t, fed agencyd. US, fed gov’t, fed agencye. rep of foreign gov’t. i.e. ambassadore. rep of foreign gov’t. i.e. ambassadorf. state sues another state, citizen of another f. state sues another state, citizen of another

state, or foreign gov’t. BUT states can’t be sued state, or foreign gov’t. BUT states can’t be sued by individual or foreign nation in fed court.by individual or foreign nation in fed court.

g. citizen v. citizen limit is $50,000 or more. g. citizen v. citizen limit is $50,000 or more. h. two states vying for same propertyh. two states vying for same property


4. The judicial landscape-4. The judicial landscape-finding the right court. . . finding the right court. . . a. Constitutional courts - a. Constitutional courts - 1) Judiciary Act of 1789 gets Fed 1) Judiciary Act of 1789 gets Fed

district cts a) 91 ct’s a) 91 ct’s b) These cts have original jurisdiction b) These cts have original jurisdiction c) only ct’s to hold trials w/ juries c) only ct’s to hold trials w/ juries

(only 3% end in ruling, the rest are (only 3% end in ruling, the rest are plea bargained)plea bargained)

d) 675 judges–d) 675 judges–all picked by all picked by Prez/confirmedPrez/confirmed


2) Ct of Intern’tl trade2) Ct of Intern’tl trade3) Court of Appeals3) Court of Appealsa) appellate jurisdictiona) appellate jurisdictionb) 12 districtsb) 12 districtsc) correct mistakes made in district cts.c) correct mistakes made in district cts.4) Supreme Ct - 4) Supreme Ct - a) a) original and appellate jurisdiction and appellate jurisdictionb) 9 justices b) 9 justices c) Constitutional issues (14th amendment)c) Constitutional issues (14th amendment)d) Judicial Review . . . Which does what?d) Judicial Review . . . Which does what?Ans- challenges leg + exec branch decisions.Ans- challenges leg + exec branch decisions.5. Special cts + legislative cts (set up to deal 5. Special cts + legislative cts (set up to deal

w/ powers of Congress)w/ powers of Congress)


5. Jurisdiction -5. Jurisdiction -

a) original - trial starts here. 90% a) original - trial starts here. 90% end hereend here

b) appellate - adverse decision b) appellate - adverse decision from lower ct. or highest state from lower ct. or highest state supreme ct sends it up to US supreme ct sends it up to US Supreme Ct if the SC wishes to Supreme Ct if the SC wishes to accept the accept the case.


6. The Judges’ Portfolio6. The Judges’ Portfolioa. Presidential nomination w/ Senate vote to a. Presidential nomination w/ Senate vote to

confirm the appointmentconfirm the appointment1) 1) Senatorial courtesySenatorial courtesy - home state senator can - home state senator can

immediately VETO a confirmation w/o immediately VETO a confirmation w/o discussion. discussion.

2) Lifetime appointments for all fed judges2) Lifetime appointments for all fed judgeswhich can enhance a president’s legacywhich can enhance a president’s legacy3) impeachment (7 in US history) is available for 3) impeachment (7 in US history) is available for

“unacceptable” behavior.“unacceptable” behavior.4) Judge must meet the “litmus test” - ideological 4) Judge must meet the “litmus test” - ideological

purity is critical and Divided Gov’t makes it purity is critical and Divided Gov’t makes it more difficult to select and confirm judges. more difficult to select and confirm judges. Confirmation could go badly if: Confirmation could go badly if:

a) you have the minority party in Senatea) you have the minority party in Senateb) Prez is in the late term selectionsb) Prez is in the late term selectionsc) Judge has ethics violations, can nix nomination. c) Judge has ethics violations, can nix nomination.

i.e. Clarence Thomas survived, Robert Bork did i.e. Clarence Thomas survived, Robert Bork did not.not. OR maybe one is not qualified. i.e. Myers OR maybe one is not qualified. i.e. Myers


b. Qualifications (Judge Search)b. Qualifications (Judge Search)

1) Most are Lawyers 1) Most are Lawyers 2) Male (5 female selections)2) Male (5 female selections)3) White (2 blacks selected, i.e. 3) White (2 blacks selected, i.e.

Thurgood Marshal + ThomasThurgood Marshal + Thomas4) SES - upper middle or upper class4) SES - upper middle or upper class5) Protestants + Catholics5) Protestants + Catholics6) Party favorites - only 13 of 111 6) Party favorites - only 13 of 111

SC judges non partisan selections. SC judges non partisan selections. 90% partisan selections. 90% partisan selections.

7) IDEOLOGY is the KEY factor7) IDEOLOGY is the KEY factor


c. Case work -- “Fed questions”c. Case work -- “Fed questions”1) Judicial review gives fed cts power to 1) Judicial review gives fed cts power to

“hear” federal questions and . . . “hear” federal questions and . . . overrule Leg + Exec branches -- overrule Leg + Exec branches -- overturned 100 rulings overturned 100 rulings

Marbury v. Madison Marbury v. Madison 1801 provided right 1801 provided right of Judicial Review. . . of Judicial Review. . .

2) 2) Rule of 4Rule of 4 culls through 7500 case + culls through 7500 case + selects about 100. selects about 100.

3) Solicitor Genrl assists in Appellate ct 3) Solicitor Genrl assists in Appellate ct case load possibilities. . .case load possibilities. . .

a) writ of mandamus - Ct demands actiona) writ of mandamus - Ct demands actionb) writ of certiorae- Certificate that b) writ of certiorae- Certificate that

requests requests A lower court to send up a case to the SCA lower court to send up a case to the SC


(4) deliberations + opinions(4) deliberations + opinionsChief justice delegates authority to Chief justice delegates authority to

writing WHY we (the SC) voted. Only writing WHY we (the SC) voted. Only 1/3 of decisions have been unanimous. 1/3 of decisions have been unanimous.

a) concurring - We agree and here is whya) concurring - We agree and here is whyOR-could stress a “different” OR-could stress a “different”

constitutional or legal foundation for constitutional or legal foundation for the opinionthe opinion

b) dissenting - we disagree b) dissenting - we disagree c) stare decisis - decision stands - c) stare decisis - decision stands - d) need SIX judges to vote -- MAJORITY. d) need SIX judges to vote -- MAJORITY.

Tie votes retains lower Ct decision. Tie votes retains lower Ct decision. Need five votes to set a . . .Need five votes to set a . . .


(d) (d) PrecedentPrecedent - -lower cts follows decisions of higher cts. SC lower cts follows decisions of higher cts. SC

can overrule its own decisions (200 times) can overrule its own decisions (200 times) because times change.because times change.

Brown v. Board of Educ (54) (Integrate)Brown v. Board of Educ (54) (Integrate)overruledoverruled

Plessy v. Ferguson (1898)Plessy v. Ferguson (1898)(Separate but equal) (Separate but equal)

Congress can re-initiate legislation the Congress can re-initiate legislation the following term.following term.

(e) Interpretations can follow strict (e) Interpretations can follow strict constructionist beliefs (original intent of the constructionist beliefs (original intent of the constitution) v.constitution) v.

Activist decisionsActivist decisionsPolitical climate can indicate the ideological Political climate can indicate the ideological

tendencies of the bench.tendencies of the bench.


d. Court History - d. Court History - 1) First Quarter - Developmental issues1) First Quarter - Developmental issuesi.e. Marbury v. Madisoni.e. Marbury v. Madison2) 2nd Quarter - Economic issues2) 2nd Quarter - Economic issuesMunn v. Illinois (1877) set up ICCMunn v. Illinois (1877) set up ICC3) Third quarter- social issues (1930s-1980s)3) Third quarter- social issues (1930s-1980s)a) Warren Ct set “liberal precedents in education, a) Warren Ct set “liberal precedents in education,

civil liberties, re-apportionment, 1960’scivil liberties, re-apportionment, 1960’sb) Burger Ct (a Minnesotan selected by Nixon was b) Burger Ct (a Minnesotan selected by Nixon was

more conservative although it set precedent w/ more conservative although it set precedent w/ Roe v. Wade. Roe v. Wade.

c) Rehnquist Ct - limited rights established by c) Rehnquist Ct - limited rights established by Warren Ct, not reversed; affirmative action Warren Ct, not reversed; affirmative action policies severly scrutinized.policies severly scrutinized.

d) 4d) 4thth Quarter – Privacy Issues – Roe v. Wade- Today. . . Quarter – Privacy Issues – Roe v. Wade- Today. . .


B.Civil Liberties (CL)B.Civil Liberties (CL)1. define - 1. define - Indiv legal and constitutional Indiv legal and constitutional

protections v. Govt. protections v. Govt. CL’s are found in the Bill of Rights (1-CL’s are found in the Bill of Rights (1-

10) and the SC is the final arbitrator. 10) and the SC is the final arbitrator. Winds of change shift these Winds of change shift these interpretations, especially in time of interpretations, especially in time of war . . . (cartoon) war . . . (cartoon)

2. Bill of rights review2. Bill of rights reviewa. Freedom of Expression (religious, a. Freedom of Expression (religious,

press, speech, assembly - 1)press, speech, assembly - 1)b. Privacy (3+4)b. Privacy (3+4)c. Defendant’s rights (5-8)c. Defendant’s rights (5-8)d. Other rights (2,5,9-10)d. Other rights (2,5,9-10)


3. Only a federal issue 3. Only a federal issue Barron v. Barron v. Baltimore,Baltimore, states or local gov’t could states or local gov’t could infringe on civil liberties until SC ruled infringe on civil liberties until SC ruled in 1925 that states must follow SOME in 1925 that states must follow SOME 1st Amendment rights 1st Amendment rights

Gitlow v. New York. Gitlow v. New York. BUT BUT4. SC used the 14th Amendment as the 4. SC used the 14th Amendment as the

precedent, not the 1st. States could precedent, not the 1st. States could NOT abridge 1st Am freedoms. NOT abridge 1st Am freedoms. Incorporation doctrine - States have Incorporation doctrine - States have slowly come under the Bill of Rights. slowly come under the Bill of Rights.

5. Door is now open for Bill of Rights 5. Door is now open for Bill of Rights enforcement:enforcement:

a. 1st Amendment court cases. . .a. 1st Amendment court cases. . .


1. 1. Tinker v DesMoines-Dress codesTinker v DesMoines-Dress codes2. 2. Gitlow v. N.Y. -Incorporation DoctrineGitlow v. N.Y. -Incorporation Doctrine

3. Lemon v. Kurtzman-Aid to churches follows set 3. Lemon v. Kurtzman-Aid to churches follows set guidelinesguidelines

4. Engel v. Vitale- Prayer in schools is unconstitutional4. Engel v. Vitale- Prayer in schools is unconstitutional

5. School District of Abington Township v. Pennsylvania 5. School District of Abington Township v. Pennsylvania v. Schempp- Prayer violates establishment clausev. Schempp- Prayer violates establishment clause

6. Near v. Minnesota (1931) -no prior restraint 6. Near v. Minnesota (1931) -no prior restraint censorshipcensorship

7. Schneck v. U.S. (1919) -Govt could restrict inflam 7. Schneck v. U.S. (1919) -Govt could restrict inflam rhetoricrhetoric

8. Brandenburg v. Ohio- can incite w /o lawless action8. Brandenburg v. Ohio- can incite w /o lawless action

9. Reynolds v. US (polygamy + Mormom church) State 9. Reynolds v. US (polygamy + Mormom church) State prevailsprevails


10. Roth v. U.S. Obsentity cannot be protected 10. Roth v. U.S. Obsentity cannot be protected by the 1stby the 1st

11. Miller v. California11. Miller v. California Community standards Community standards sets Obscen sets Obscen

but what is lewd or offensive?but what is lewd or offensive?

12. N.Y. Times v. Sullivan -Malice12. N.Y. Times v. Sullivan -Malice

13. Texas v. Johnson -Flag burning is symbolic 13. Texas v. Johnson -Flag burning is symbolic speechspeech

14. Oregon v. Smith (drug use. . .laws prevail) 14. Oregon v. Smith (drug use. . .laws prevail)

15. U.S. v. Playboy Entertainment Group15. U.S. v. Playboy Entertainment Group --Target block v. banTarget block v. ban 16. Red Lion v. FCC16. Red Lion v. FCC --Gov’t can restrict broadcasts.Gov’t can restrict broadcasts.

17. Reno v. ACLU - 1st Amendment applies to 17. Reno v. ACLU - 1st Amendment applies to internetinternet


18. Ashcroft v. ACLU – US must 18. Ashcroft v. ACLU – US must use filtering software for pornuse filtering software for porn

19. Ny Times v. US (1971) 19. Ny Times v. US (1971) Pentagon papers can be Pentagon papers can be published. No prior restraintpublished. No prior restraint

20. DeJonge v. Oregon (1937) 20. DeJonge v. Oregon (1937) invalidated state laws Freedom invalidated state laws Freedom of Assemblyof Assembly


b. Restrictions on 1st Amendmentb. Restrictions on 1st Amendment

1)1) unprotected speech include obscenity, defamatory unprotected speech include obscenity, defamatory speech, pornography, fighting words, seditious speech, pornography, fighting words, seditious speech. The PRess now includes cable, faxes + e-speech. The PRess now includes cable, faxes + e-mailsmails

a)a) Libel (Print) + Slander (Vocal) = MaliceLibel (Print) + Slander (Vocal) = MaliceB) Protected speech: Political Speech - Snyder v. B) Protected speech: Political Speech - Snyder v.

Baptist church is OKBaptist church is OK2) Freedom of assembly restrictions - lawful + 2) Freedom of assembly restrictions - lawful +

nonviolent; order maintained by time, place, nonviolent; order maintained by time, place, manner; precise, fairly administered and content manner; precise, fairly administered and content neutral. NO prvt property trespassing! 3P’sneutral. NO prvt property trespassing! 3P’s

3) Freedom of religion 3) Freedom of religion a)a) Establishment clause. . .Engel + LemonEstablishment clause. . .Engel + Lemonb)b) Free Exercise Clause – Oregon v. SmithFree Exercise Clause – Oregon v. Smith

22ndnd Amendment Amendment

a.a. Who has the right to bear arms?Who has the right to bear arms?

State or Individual? State or Individual?



c. Accused Rights -c. Accused Rights -4th, 5th, 6th, 7th, 8th Amendments:4th, 5th, 6th, 7th, 8th Amendments:1). Original intent to protect rights from political arrests. 1). Original intent to protect rights from political arrests.

Now it has expanded to protecting rights of the Now it has expanded to protecting rights of the “accused”.“accused”.

2). Process (T- )2). Process (T- )a). Crime (5 to 1 ratio of what’s reported) > Arrest a). Crime (5 to 1 ratio of what’s reported) > Arrest (1) Probable (Reasonable) Cause to arrest + gather (1) Probable (Reasonable) Cause to arrest + gather

evidence-4th Amendment restricts unreasonable evidence-4th Amendment restricts unreasonable searches + Seizures + Writ of Habeus Corpus issued searches + Seizures + Writ of Habeus Corpus issued forbidding imprisonment w/o evidence (Art 1)forbidding imprisonment w/o evidence (Art 1)

(2) Exclusionary rule- Can illegally seized evidence be (2) Exclusionary rule- Can illegally seized evidence be used against the accused? used against the accused?

((a)) Yes if . . .((a)) Yes if . . . ((1)) the evidence was in plain view((1)) the evidence was in plain view((2)) Exigent circumstances - time doesn’t allow securing ((2)) Exigent circumstances - time doesn’t allow securing

a warranta warrant((3)) Auto exception - Probable cause that a crime was ((3)) Auto exception - Probable cause that a crime was

committed or may be committed. committed or may be committed. ((4)) Foreign agents can be “tapped”((4)) Foreign agents can be “tapped”


b). search warrant - “Terry” search - Friskb). search warrant - “Terry” search - Frisk

c) Once apprehended- legal counselc) Once apprehended- legal counsel

d) Questioning - no forced incriminations d) Questioning - no forced incriminations (5th) + no excessive bail (8th) (5th) + no excessive bail (8th)

3) Prosecution ( or plea bargain) > Trial3) Prosecution ( or plea bargain) > Trial

Speedy trial w/ a jury (6th, Art III) + no Speedy trial w/ a jury (6th, Art III) + no double jeopardy (5th); confront double jeopardy (5th); confront witnesses (6th) witnesses (6th)

4) Verdict > Sentencing (if needed)4) Verdict > Sentencing (if needed)

No cruel or unusual punishments (8th)No cruel or unusual punishments (8th)


21. Mapp v. Ohio- Exclusionary rule holds for states too.21. Mapp v. Ohio- Exclusionary rule holds for states too.22. Miranda v. Arizona - Police questioning of suspects22. Miranda v. Arizona - Police questioning of suspects

23. Jacobson v. U.S.23. Jacobson v. U.S. - IS IT OR IS IT NOT ENTRAPMENT- IS IT OR IS IT NOT ENTRAPMENT

24. Gideon v. Wainright- Felony charged defendants 24. Gideon v. Wainright- Felony charged defendants need counselneed counsel

25. Betts v. Brady - Only Cap Punish defendants get 25. Betts v. Brady - Only Cap Punish defendants get counselcounsel

26 Fuhrman v. Georgia-Sentencing too random, but CP is 26 Fuhrman v. Georgia-Sentencing too random, but CP is OKOK

27. Harmelin v. Michigan27. Harmelin v. Michigan -severity isn’t necessarly -severity isn’t necessarly cruelcruel

28. Gregg v. Georgia-Cap Punish is severe, but not cruel28. Gregg v. Georgia-Cap Punish is severe, but not cruel

29. McGlesky v. Kemp-Cap Pun does not violate 14th 29. McGlesky v. Kemp-Cap Pun does not violate 14th Amend Amend

30. 30.


30. Griswold v.Connecticut-Privacy issue over 30. Griswold v.Connecticut-Privacy issue over Birth control 9thBirth control 9th

31. Roe v. Wade-Trimester ruling unleashed 31. Roe v. Wade-Trimester ruling unleashed abortion issueabortion issue

32. Webster v. Reproductive Health Services-32. Webster v. Reproductive Health Services-states can control who performs abortions, states can control who performs abortions, i.,e. state employeesi.,e. state employees

33. Rust v. Sullivan -No fed funds for planning 33. Rust v. Sullivan -No fed funds for planning abortionsabortions

34. Planned Parenthood v. Casey- abortions 34. Planned Parenthood v. Casey- abortions can be regulatedcan be regulated

35. Sternberg v. Carhart -partial birth abortion 35. Sternberg v. Carhart -partial birth abortion is legalis legal

36. Cruzan v. Director, Missouri Dept of Health-36. Cruzan v. Director, Missouri Dept of Health-patients can refuse med treatment- informed patients can refuse med treatment- informed suicidesuicide


37. Bd of Ed v. Earls –Drug testing is Not 37. Bd of Ed v. Earls –Drug testing is Not unreasonable search.unreasonable search.

38. US v. Drayton et al – Weakened exclusionary 38. US v. Drayton et al – Weakened exclusionary rule w/o empowering policerule w/o empowering police

39. Atkins v VA., outlawed Death Pen for mentally 39. Atkins v VA., outlawed Death Pen for mentally retarded.retarded.

40. Hamdi v. Rumsfeld-Security conditions do not 40. Hamdi v. Rumsfeld-Security conditions do not revoke a captured combatant’s rights to redress revoke a captured combatant’s rights to redress his/her grievances.his/her grievances.

41. District of Columbia v. Heller Right to bear arms 41. District of Columbia v. Heller Right to bear arms 22ndnd Amendment; city can’t forbid weapons. Amendment; city can’t forbid weapons.

42. Ring v. AZ., Juries must deliver death 42. Ring v. AZ., Juries must deliver death sentences.sentences.

43. Kyllo v. US- High Tec surveillance needs a 43. Kyllo v. US- High Tec surveillance needs a warrantwarrant

44. Dickerson v. US– Can’t undermine Miranda. It’s 44. Dickerson v. US– Can’t undermine Miranda. It’s a constitutional rule!a constitutional rule!


Right to Bear ArmsRight to Bear Arms22ndnd Amendment states: A well-regulated Militia, Amendment states: A well-regulated Militia,

being necessary to the security of a free being necessary to the security of a free State, the right of the people to keep and State, the right of the people to keep and bear Arms, shall not be infringed. bear Arms, shall not be infringed.

Court held that:Court held that:1) Although the amendment lacks 1) Although the amendment lacks

interpretation\interpretation\a) DC’s actions were in conflict with the majority of a) DC’s actions were in conflict with the majority of

state rulings.state rulings.

b) DC’s actions were far too b) DC’s actions were far too encompassing. . .”all weapons should be encompassing. . .”all weapons should be restrictive”. restrictive”.

c). States still prohibited “concealed weapons”. c). States still prohibited “concealed weapons”. d)Takes away the right (or liberty) of self-d)Takes away the right (or liberty) of self-

defense. defense. e) 5-4 ruling, Scalia wrote majority opinione) 5-4 ruling, Scalia wrote majority opinion


VI. Cee. Civil rights -VI. Cee. Civil rights -Providing equality to the minority/majorityProviding equality to the minority/majority1. The question is NOT can gov’t treat people 1. The question is NOT can gov’t treat people

of different races or ethnic nationality of different races or ethnic nationality differently. . . But it is whether such differently. . . But it is whether such differences in treatment are reasonable.differences in treatment are reasonable.

2. Historical examples2. Historical examplesa. Native Americansa. Native Americansb. Irish discrimination in the NEb. Irish discrimination in the NEc. Japanese-Americansc. Japanese-Americansd. women entering med school in the ‘20’sd. women entering med school in the ‘20’se. Rich people get taxed more than poor e. Rich people get taxed more than poor

people. people. f. Except in some cases, classifying people on f. Except in some cases, classifying people on

the basis of race or ethnicity is unreasonable the basis of race or ethnicity is unreasonable - “- “Suspect Classifications”Suspect Classifications”


g. The Constitution does ensure g. The Constitution does ensure (ALTHOUGH never specifically (ALTHOUGH never specifically mentioned) thatmentioned) that

1) Gov’t does not discriminate against 1) Gov’t does not discriminate against usus

2) Gov’t protects us from interference by 2) Gov’t protects us from interference by private individuals. private individuals.

h. Framers referred to these rights as h. Framers referred to these rights as “NATURAL RIGHTS”, rights of all “NATURAL RIGHTS”, rights of all people to dignity and worth.people to dignity and worth.

Today they are called Today they are called HUMAN RIGHTS.HUMAN RIGHTS.


3. Equality -3. Equality -a. Promote equality OF: a. Promote equality OF:

Freedom “to” and Freedom “from” Freedom “to” and Freedom “from” unless it compromises someone else’s unless it compromises someone else’s rightright

1) “E”of opportunity - go for it, you are 1) “E”of opportunity - go for it, you are the catalyst, It also means competition. the catalyst, It also means competition. You are the mover!You are the mover!

2) “E”of Outcome - i.e. 2) “E”of Outcome - i.e. Affirmative ActionAffirmative Action - - not just a boost but Gov’t has an not just a boost but Gov’t has an obligation to promote minority obligation to promote minority development. Project evolved from development. Project evolved from helping the black male to the white helping the black male to the white female. female.


3) The opposite of affirmative action is 3) The opposite of affirmative action is Discrimination - denying access. Discrimination - denying access.

4). Equal Justice - not equal results or 4). Equal Justice - not equal results or equal rewards. . .the Constitution does equal rewards. . .the Constitution does NOT intend to provide equal NOT intend to provide equal condition. . . just equal opportunity - condition. . . just equal opportunity - Life should get better. Life should get better.

a) 1st mention of equality is in the 14th a) 1st mention of equality is in the 14th Amendment - All will have “equal Amendment - All will have “equal protection” unless there is a protection” unless there is a “compelling public interest” to “compelling public interest” to discriminate. discriminate.

b) Burden of proof is on the state. b) Burden of proof is on the state. THEREFORE . . . to right a past wrong, I THEREFORE . . . to right a past wrong, I may have to discriminate to RIGHT past may have to discriminate to RIGHT past ills for a period of time!ills for a period of time!


5. Black issues- 5. Black issues- a. although the 13th Amendment prohibits a. although the 13th Amendment prohibits

slavery – 1865 Overturnedslavery – 1865 Overturned Dred Scott v. SanfordDred Scott v. Sanford

b. ????Amendment Equal protection – 1868b. ????Amendment Equal protection – 18681414thth c. ??? Amendment - Right to vote (1870)c. ??? Amendment - Right to vote (1870)1515thth established racial equality for men . . . established racial equality for men . . . d. Society did not transform as quickly. Civil d. Society did not transform as quickly. Civil

War is often seen as more of an economic War is often seen as more of an economic conflict than a racial conflict. So race issues conflict than a racial conflict. So race issues took more time to resolve.took more time to resolve.

e. Segregation and White Supremacy prevailed. e. Segregation and White Supremacy prevailed. Reconstruction ended in 1877 w/ Whites in Reconstruction ended in 1877 w/ Whites in control of the south, and blacks were left to control of the south, and blacks were left to Jim Crow Laws that preached a separate Jim Crow Laws that preached a separate society. society.


i.e i.e Plessy v. FergusonPlessy v. Ferguson

1) voting1) voting2) Housing2) Housing3) Job procurement3) Job procurement4) accessibility to public accommodations4) accessibility to public accommodationsf. NAACP formed in 1910. f. NAACP formed in 1910. g. During WWI, Blacks migrated north to the g. During WWI, Blacks migrated north to the

cities and their sheer numbers became a cities and their sheer numbers became a political force as middle class became political force as middle class became accessibleaccessible

h. During WWII. . .blacks sought judicial relief. h. During WWII. . .blacks sought judicial relief. (1) President Truman and Eisenhower (1) President Truman and Eisenhower

integrated the military and Fed Bureaucracyintegrated the military and Fed Bureaucracy


f. 1950’s - Blacks seek political muscle-f. 1950’s - Blacks seek political muscle-1) Martin Luther King, using the First 1) Martin Luther King, using the First

Amendment - Freedom of petition- sought Amendment - Freedom of petition- sought relief via civil disobedience and the white relief via civil disobedience and the white supremacists responded with fire hoses and supremacists responded with fire hoses and police tactics that assimilated Nazi Germany. police tactics that assimilated Nazi Germany. Rosa ParksRosa Parks

2) As Congress dragged its feet w/ a Southern 2) As Congress dragged its feet w/ a Southern Senatorial block, the executive and judicial Senatorial block, the executive and judicial branches responded.branches responded.

a) Brown v. Board of Education (1954)a) Brown v. Board of Education (1954)Segregation by law “de jure segregation” was Segregation by law “de jure segregation” was

unconstitutional. But de unconstitutional. But de factofacto segregationsegregation- - segregation by choice or reality- still prevailed segregation by choice or reality- still prevailed until until Swann v. Charlotte Mecklenburg Board of Swann v. Charlotte Mecklenburg Board of EducationEducation 1971, the SC ruled that schools will 1971, the SC ruled that schools will re-district to end segregation via busing, a re-district to end segregation via busing, a very unpopular device to integrate.very unpopular device to integrate.


(b) Rosie Parks boycott of Montgomery (1955). (b) Rosie Parks boycott of Montgomery (1955). Little Rock school integration ‘57. Little Rock school integration ‘57.

Whites joining the fray. . . Whites joining the fray. . . (c) Birmingham riots 1963(c) Birmingham riots 1963(d) March on Washington 1964(d) March on Washington 1964(e) JFK promoted civil rights legislation and it (e) JFK promoted civil rights legislation and it

was enacted with the Civil Rights Act of 1964was enacted with the Civil Rights Act of 1964(f) Hot summers of 1965-1967: Watts, Detroit, (f) Hot summers of 1965-1967: Watts, Detroit,

Minneapolis, HarlemMinneapolis, Harlem(g) Kerner Commission said we have two (g) Kerner Commission said we have two

Americas, white and black and it would take Americas, white and black and it would take a commitment on the nat’l level to integratea commitment on the nat’l level to integrate


g. The Feds respond:g. The Feds respond:1) How does one get access to gov’t?1) How does one get access to gov’t?a) Da Vote - Voting Rights Act of 1965 ended the a) Da Vote - Voting Rights Act of 1965 ended the

means to effect suffrage. means to effect suffrage. b) Poll taxes (24th Amendment), White b) Poll taxes (24th Amendment), White

primaries, gerrymandered districts, all were primaries, gerrymandered districts, all were thrown out. Ended the Grandfather clause; thrown out. Ended the Grandfather clause; Literacy tests; Protest turned to politics = Literacy tests; Protest turned to politics = 12,000 African Americans now hold elected 12,000 African Americans now hold elected office, as compared to 70 in 1965. office, as compared to 70 in 1965.

c) This has also established “minority v. majority c) This has also established “minority v. majority districts that promoted minority districts that promoted minority electorates . . . electorates . . . but but Shaw v. Reno Shaw v. Reno and other cases has and other cases has condemned the design of districts using race condemned the design of districts using race as the predominant factor.as the predominant factor.


6. Women Issues6. Women Issues- Equality > Privacy > Harassment > - Equality > Privacy > Harassment >

ChoiceChoicea. Blacks showed that judicial route was a. Blacks showed that judicial route was

the quickest way to gain a semblance of the quickest way to gain a semblance of equality.equality.

b. A “paternal” court protected women b. A “paternal” court protected women until the 1970’s, but the feminist until the 1970’s, but the feminist movement went from social to political movement went from social to political and judicial movement and the courts and judicial movement and the courts responded. responded.

c. Women in the work force has provided c. Women in the work force has provided economic equality (by some economic equality (by some measurements). Political equality came measurements). Political equality came with the 19th Amendment (1920) but with the 19th Amendment (1920) but ERA fell short in 1987.ERA fell short in 1987.


d. Judicial interpretationsd. Judicial interpretationsrevolves around the reasonable standardrevolves around the reasonable standard1) Rational base test - Is it reasonable to have boys’ 1) Rational base test - Is it reasonable to have boys’

compete VS girls in hockey; or force ALL compete VS girls in hockey; or force ALL occupations to have equal number of male and occupations to have equal number of male and female employees when certain occupations may female employees when certain occupations may “fit” a man more, or a female more“fit” a man more, or a female more

or there may not be employees to fill these spots or there may not be employees to fill these spots by gender? by gender? Reed v. ReedReed v. Reed 1971 1st discrimination 1971 1st discrimination ruling based on gender.ruling based on gender.

2) Heightened/medium scrutiny- Important gov’t 2) Heightened/medium scrutiny- Important gov’t objectives exist for gender based law. objectives exist for gender based law. Orr v. Orr.Orr v. Orr. Alimony only to women. . .NOTTT Alimony only to women. . .NOTTT

3) Strict Scrutiny standard. A Man gets the raise 3) Strict Scrutiny standard. A Man gets the raise because he is the major wage earner, not the because he is the major wage earner, not the female. . .NOTTTTT. Fundamental rights are at female. . .NOTTTTT. Fundamental rights are at issue here. . .issue here. . .

e. Civil Rights Act of ‘64 + ‘72 banned sex e. Civil Rights Act of ‘64 + ‘72 banned sex discrimination in hiring, firing and compensation.discrimination in hiring, firing and compensation.


f. Can women be drafted? No. . .f. Can women be drafted? No. . .Rostker v. Goldberg 1981Rostker v. Goldberg 1981 - SC will give “great - SC will give “great

deference” to Congressional policy.deference” to Congressional policy.The FATE of ERA was determined with this The FATE of ERA was determined with this

ruling because if ERA passed, the Rostker ruling because if ERA passed, the Rostker ruling could be at risk. Today, women are ruling could be at risk. Today, women are not allowed in ground troop combat positions not allowed in ground troop combat positions and limited naval operations. and limited naval operations.

g. Womens’ issues now have evolved into g. Womens’ issues now have evolved into Sexual harassment cases as women have Sexual harassment cases as women have moved into the Workplace. Title IX legislation moved into the Workplace. Title IX legislation has provided women opportunity in the has provided women opportunity in the “Public school” sector which has initiated her “Public school” sector which has initiated her advancement in the Private sector. advancement in the Private sector.

1) Sexual harassment guidelines1) Sexual harassment guidelinesa) requesting sexual favors - Quid pro quo rule a) requesting sexual favors - Quid pro quo rule

- employer is liable- employer is liableb) hostile environment - liability + negligenceb) hostile environment - liability + negligencec) Most federal laws are vaguec) Most federal laws are vague


h. Comparable worthh. Comparable worth- Equal pay for equal worth. . .Women still - Equal pay for equal worth. . .Women still

earn as much as 70% less than their male earn as much as 70% less than their male counterparts in the private sector. Who will counterparts in the private sector. Who will pay for equity? pay for equity?

i. Pro-life v. pro choice - Roe v. Wade was, i. Pro-life v. pro choice - Roe v. Wade was, according to the SC, a privacy issue, not according to the SC, a privacy issue, not when life begins. Opponents say Nowhen life begins. Opponents say No

1.) Hyde Amendment followed, restricting fed 1.) Hyde Amendment followed, restricting fed funds to lower income women if the mother funds to lower income women if the mother is not in danger. is not in danger.

2) SC has given states more leeway in 2) SC has given states more leeway in controlling abortions, but still supported controlling abortions, but still supported women in not contacting their husbands, women in not contacting their husbands, and partial birth abortions.The issue evolvesand partial birth abortions.The issue evolves


7. Affirmative Action-7. Affirmative Action-providing compensation to a providing compensation to a

discriminated group. Moving discriminated group. Moving beyond equal opportunity to equal beyond equal opportunity to equal results. results.

a. Results have provoked reverse a. Results have provoked reverse discrimination charges - discrimination charges - Regents of Regents of U of Calif v. Bakke.U of Calif v. Bakke. He was denied He was denied admittance on race although he had admittance on race although he had higher test scores . SC favored higher test scores . SC favored Bakke, no more quotas, but race Bakke, no more quotas, but race can be a factor.can be a factor.

b. Adarand . . .minority quotas are unconstib. Adarand . . .minority quotas are unconsti


8. Civil Rights quests8. Civil Rights questshas moved into a variety of arenashas moved into a variety of arenasa. Age discrimination + mandatory a. Age discrimination + mandatory

retirements. Rationale basis test.retirements. Rationale basis test.b. Youth Tests-- Can you divorce your parents. b. Youth Tests-- Can you divorce your parents.

. .Can you pick your legal guardians?. .Can you pick your legal guardians?c. Disabled Americans - Americans w/ c. Disabled Americans - Americans w/

Disabilities Act of 1990 (ADA) Disabilities Act of 1990 (ADA) 1) define disabled - AIDS victims, Eye glass 1) define disabled - AIDS victims, Eye glass

wearers. . .Who will bear the cost?wearers. . .Who will bear the cost?d. Gay + Lesbian Rights - Rights to privacy to d. Gay + Lesbian Rights - Rights to privacy to

Hate crimes to the Boys’ Scouts, who denied Hate crimes to the Boys’ Scouts, who denied a homosexual entrance into the program. a homosexual entrance into the program.

e. Ethnic Inequality-minority/majority growse. Ethnic Inequality-minority/majority growsf. But the SC has not always been pro-f. But the SC has not always been pro-

affirmative action. . .Baake, Adarand v. affirmative action. . .Baake, Adarand v. Pena, the Michigan cases has tempered the Pena, the Michigan cases has tempered the zeal of the federal gov’t. zeal of the federal gov’t.

Documents

VI. Judicial Branch/Civil Liberties/Civil Rights1 VI. Judical Branch/Civil Liberties/Civil Rights