This week:
Lowi, Chpt 4 (Civil Liberties)
Griswold v. CT: Is there a constitutional right to
privacy
Court as a 'governing' body
A. Civil Rights and Liberties
• 20th Century = changing definition of citizenship
• major question: citizen of what?
• Rights and Liberties:
• in speech, press, association, religion
• as an accused criminal
• from encroachment by FEDERAL govt.
• from encroachment by STATE govts (?)
B. Definitions:
• Civil liberties
o
o
o
o
the absence of coercion
rules that limit government's authority
protections FROM GOVT. specified in Bill of Rights
basic procedural rights of a citizen
• Civil rights
o limit majorities power over minority
o application of liberties equal to all groups in society
o protections against categorical discrimination
Nationalization of the Bill of Rights
A. Founder’s Fears (again....)
• Constitution based on fear of new NATIONAL government
• national government seen as the primary threat to liberty
• state governments granted power to define rights
o slavery legal in some states
o if so, what rights & liberties
B. Bill of Rights, 1791
• insurance against the new national Congress acting
“British”
• originally at least 17 items
• One proposal for “no state shall deny free speech....”
 this amendment rejected
CONGRESS SHALL MAKE NO LAW RESPECTING...
1) establishing/prohibiting religion,
1) speech, press, assembly, petition
2) a well regulated state militia, bear arms
3) quarter soldiers
4) search & seize
5) no double jeopardy, no trial w/o indictment, due process
5) to taking private property w/o compensation
6) speedy trial, impartial jury, assistance of counsel
7) jury trial
8) no excessive bail, no cruel punishment
9) people retain rights beyond those listed here
10) states & people retain powers not delegated here
Can states make laws respecting such things?
• Clear that original intent was to apply only to Congress
• how else could slavery exist until 1860s?
C. Strict ("Dual") Federalism (pre Civil War)
Strict division between powers and functions
National: Canals,
patents,
currency,
tariffs,
defense,
postal service
States:
Everything else
public health
morality
welfare
education,
banking
regulate business,
Criminal law
Rights and liberties
10th Amendment Police Powers:
" The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people"
BUT: McCullough v. Maryland, 1819
People have two sets of rights
From US Constitution
From State Constitution
Thus, limits on what a government can do, depend on which
rights are at issue
D. Selective Incorporation of Bill of Rights by Courts
• key questions:
• do you have rights protected by Fed constitution?
• rights that a STATE government can not violate?
• protected by what?
• by Bill of Rights?
o which parts of the Bill of Rights say that "states shall
pass no laws about..." ?
1. Selective INCORPORATION of Bill of Rights
• A slow, halting, gradual, incomplete process by Supreme
Court
• mostly a function of changes in composition of Court
• not in changes in the Constitution
Major change brought about by a change in the Constitution....
Civil War: 14th Amendment
2. Barron v. Baltimore (MD) 1833
• John Marshall
• Barron owned a deep water wharf/dock
• City of Baltimore wrecked wharf
• Barron claimed Batl (MD) took property w/o due process or
compensation
o claimed 5th amed. protected from such acts by govt
o Marshall Court:
o NO, Bill of Rights protects against acts by National
Govt. only
o Court held this logic through 1897....
3. Consequences of Barron logic
• Baltimore can take w/o due process, unless state constitution
provides protection...
• Virginia can take life and liberty w/o due process
• an unavoidable but twisted logic?
• two standards of citizens....
 of State
 of Nation
• states can and do have dift standards
• slavery in one, not another
• Civil War, 1860-1865
4. Post Civil War Amendments to Const.
Constitutional revolution:
• 15th Amend (1870) right to vote....
• 14th Amendment (1868):
• Sec 1 defines US CITIZEN as “born or naturalized” in US
• “NO State shall make or enforce any law which shall abridge the
privileges and immunities of citizens, nor shall any state deprive
any person of life, liberty or property w/o due process of law, nor
deny to any person within its jurisdiction the equal protection of
the laws...”
• Sec 5: the Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.
Post Civil War Constitutional Issues
A. What was intent of 14th’s Amendment’s “Founders”
• “Radical Republicans”
• Did they intend a constitutional revolution?
• INTENT = reverse Dred Scott (1857)
o Scott: “Blacks can't have rights of whites”...not
citizens
o Establish NEW rights of citizenship that no state could
violate
o rebuild south in image of north - with freed African
Americans as full citizens
o allow Congress to step in and restrict states from
undoing progress made via Civil War
o emancipation alone would not end slavery (13th
Amend.)
Civil War Extension of Civil Rights died in 1876
• Tilden won via Democrats' use of fraud, & violence against
African American voters in:
 South Carolina
 Louisiana
 Florida & Mississippi (maybe)
 Tilden (D) “won” Florida by 100 votes
 If FL EC votes counted, Tilden President
 Hayes (R) - Tilden (D) “compromise:”
• Hayes gets to be President
• South gets US Troops to end occupation
• Thus, it takes a long to establish national
standards of rights
14th Amendment also ignored by US Supreme Court
Incorporation of Bill of Rights
• 14th Amendment (1868):
• Sec 1 defines US CITIZEN as “born or naturalized” in US
• “NO State shall make or enforce any law which shall abridge
the privileges and immunities of citizens, nor shall any state
deprive any person of life, liberty or property w/o due process of
law, nor deny to any person within its jurisdiction the equal
protection of the laws...”
• Sec 5: the Congress shall have the power to enforce, by
appropriate legislation, the provisions of this article.
Courts Ignored 14th Amend Intent for Decades
What are basic privileges and immunities of US citizen?
What liberties, due process, equal protection?
Limited?: right to marry, to move freely, own property,
own business
vs.
Expansive rights listed in the Bill of Rights
• are they found in parts of the Bill of Rights of 1791?
• are they the whole Bill of Rights?
• more than the Bill of Rights?
Bizarre Definitions of Due Process and Equal Protection
(1870s - 1925)
1. Courts "wrote out" equal protection clause
• 1883 ruled Congress did not have power to eliminate
discrimination unless practiced by government
• 1896 ruled that state-sponsored discrimination OK
Civil Rights Cases (1883)
Congress passed Civil Rights Act in 1875:
all persons within the jurisdiction of the United States shall be entitled to the
full and equal enjoyment of the accommodations, advantages, facilities, and
privileges of inns, public conveyances on land or water, theaters, and other
places of public amusement; subject only to the conditions and limitations
established by law, and applicable alike to citizens of every race and color,
regardless of any previous condition of servitude
Court, "NO":
• Congress didn't have power to enforce 14th Amendment in
this way
• 14th Amendment limited what STATE could do, not what
a person could do....
• put an end to Radical Republican attempts to promote civil
rights
• "equal protection" did not preclude private discrimination:
o
o
o
o
o
o
theaters
transportation
hotels
restaurants
housing
employment
• John Marshall Harlan, dissent in 8 - 1 decision
Plessey V. Ferguson (1896)
• 7 - 1 decision (Harlan, dissent)
• Court ignored facts about quality of facilities
• "separate but equal" facilities OK on:
o railways
o (public schools)
"We consider the underlying fallacy of the plaintiff's argument to consist
in the assumption that the enforced separation of the two races stamps the
colored race with a badge of inferiority. If this be so, it is not by reason of
anything found in the act, but solely because the colored race chooses to put
that construction upon it."
2. Substantive v. Procedural due process distinction
a. Substance = limit what government may do in writing
Legislation, passing regulations
aka “economic” due process
b. Procedural due process = limit HOW laws are executed
aka "rights" of participation, of accused criminals
if Court chooses 1st interpretation, it may restrict scope of govt
action w/o protecting citizens
1870s - 1920s Courts do just this
Review: Why did Congress pass 14th Amendment?
14th Amend due process clause =
substantive protection
protect "liberty of contracts" from STATE govt. acts
Lochner v. New York (1905) a 5 - 4 majority
o NY regulating hours of work in bakery
o NY law = could not work more than 60 hrs p/ wk
o Lochner convicted under NY law
Justice Peckman: "right of the employee and employer to
negotiate a contract is part of the liberty, under the 14th
Amend, that no person can be denied w/o due process"
[due process = est. legitimate reason]
Since "no valid reason" to interfere, Lochner cant be denied his
liberty of negotiating the contract
Oliver W. Holmes Jr. , dissent:
"case decided on economic theory"... not the Const.
1868 - 1900:
Court ignored:
Privileges and immunities clause
Due process clause
Equal protection clause
Congress' power to enforce via 14th Amendment
Invalidated:
business regulations
anti-trust laws
income tax
civil rights
Beginning of Incorporation of Bill of Rights
See Lowi Chpt 4, p. 90
Is there a constitutional right to privacy? Where?
Griswold v. CT
Roe v. Wade
5th Amendment protection of property.....1897
A. 1st Amend, Speech: Gitlow v. New York, 1925
1. Background:
NY Criminal Anarchy Act of 1902
punish certain types of speech, regardless of INTENT
or OUTCOME
Gitlow distributing Left Wing Manifesto
WW1
2. Incorporation: a (delayed) constitutional revolution
very first part of one of the 1st 10 amendments considered to
limit a state action affecting personal liberties
Court recognizes that 14th Amend. Due Process Clause
is a basis for their jurisdiction over STATE acts
assume that speech is one of the fundamental privileges and
immunities that ALL CITIZENS (US citizens) share
1st amend "among the fundamental liberties protected by
the due process clause of the 14th amend"
3. Decision:
Some speech protected from state acts via Bill of Rights
reversing Barron v Baltimore (1833)
BUT, previous Supreme Court decisions
defined what speech is not protected, this was not
Gitlow back to jail, since this type of speech not protected