American GovernmentCivil Rights

Civil Rights vs. Civil Liberties

Civil Rights vs. Civil Liberties

• Civil Rights – those protections by government power• Abuses of personal rights ensconced in the Bill of Rights by:

• State governments• Local governments• Businesses & Social Institutions• Individuals

• Civil Liberties – the Constitution’s protections from government power

• The tension between the ‘right’ of the individual and the ‘right’ of the society is a constant source of debate in civil liberties discourse.

Fundamental Rights

• Fundamental Rights – government must have a compelling reason to interfere in matters protected by fundamental rights:• Right Life• Free speech• Freedom of religion• Marriage

• Some recognized rights remain controversial as to their ‘fundamental’ nature• Privacy

• Compelling exceptions – even fundamental rights protected by the constitution have limits:• Life – death penalty• Free speech – pornography• Religion – human sacrifice• Marriage – between same

sex? between multiple partners?

• USSC Standard• Strict scrutiny• Intermediate scrutiny• Rational Basis Review

Public Opinion: Having Cake

• The American public is conflicted over civil rights.

“I believe you have the right to speak freely about whatever you want.”

AGREE 98%

DISAGREE 02%

State of the First Amendment Survey, 2007

Public Opinion: Having Cake

• General attitudes and statements of principle can mask mixed views on specifics regarding fundamental rights.

Public School Students should be allowed to wear a T-Shirt with a message or picture that others might find offensive:

AGREE 22%

DISAGREE 64%

State of the First Amendment Survey, 2007

Public Opinion: Having Cake

• General attitudes and statements of principle can mask mixed views on specifics regarding fundamental rights.

People should be allowed to say things in public that might be offensive to racial groups:

AGREE 41%

DISAGREE 56%If large numbers of people believe in freedom of speech, there will be freedom of speech even if the law forbids it. But if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them. – George Orwell

State of the First Amendment Survey, 2007

Lessons on Public Opinion

Public opinion changes over time:• Atheist:

• Read a book, teach, give a speech…well under 40% in the 1950’s• Over time all but ‘teach’ has gained majority support

• Racist: • Non-factor in the 1950’s• Today - majority support for reading a book and giving a speech • Under 40% for teaching in school

What does this evidence show?• Americans have conflicted opinions about civil rights and

civil liberties.• Public opinion changes and evolves over time.

Civil Rights: A Historical Perspective

Slavery: Constitution’s Unfinished Business

Missouri Compromise: 1820• Missouri petitions to be

admitted as a slave state – threatens balance of power.

• Compromise admits Missouri as slave, but paired with the entry of Maine – maintaining the balance.

• South agreed to accept Missouri’s southern border as the northern boundary beyond which slavery could not extend. (36/30 parallel)

Missouri Compromise

The End of Compromise

Compromise begins to breakdown• Abolitionist movement (Free Soil Party)• Southerner’s realize the ‘compromise’ spells their

political doom• Dred Scott v. Sanford

• Every justice wrote a separate decision (5-4)• African Americans enjoy “no rights which a white man

was bound to respect.” • State laws banning slavery may be unconstitutional

Result: Lincoln wins 1860 election and South secedes

Reconstruction

Constitutional Amendments• Thirteenth Amendment – formal emancipation• Fourteenth Amendment – granted citizenship• Fifteenth Amendment – guaranteed the right to vote

Amendments had mixed results: • South largely resistant

• Black codes• Rise of the KKK• Rejected Amendments, sought to redress balance

Reconstruction & Electoral Politics

Republican party faced a quandary: • the 3/5ths compromise was moot, but blacks still

denied rights through de facto discrimination.

The First Reconstruction Act of 1867• Disbanded the governments of the Southern States (void

their votes against 14th amendment)

• Replaced them with military districts

• Made readmission to the union contingent on the Southern states’ ratification of the 14th amendment

Legacy of Reconstruction

Reconstruction failed to grant equal rights to blacks in the South:

• Jim Crow laws• Segregation• White Primary • Poll Tax• Literacy Tests• Grandfather Clauses

Plessy v. Ferguson

USSC – Segregation is constitutionally permissible:•Plessy v. Ferguson

• 7-1 decision in favor of separate but equal doctrine• Rejects the “assumption that the enforced separation of the two races

stamps the colored race with a badge of inferiority.”• Helped erase Reconstruction era anti-discrimination laws in the South

I am of opinion that [segregation] is inconsistent with the personal liberty of citizens, white and black, and hostile to both the spirit and letter of the Constitution of the United States…If [segregation] should be enacted in the several States of the Union, the effect would be in the highest degree mischievous.

- Justice Harlan in Dissent, Plessy v. Ferguson

Democratic Overtures to Blacks

The New Deal• garnered black support

• despite continued neglect of Southern segregation• South: Opposed anti-lynching legislation

Roosevelt Administration • 100’s of black administrators• Reinstituted civil rights division• Banned employment discrimination in federal agencies

Migration of blacks from South to North keyed move to Democratic party

Go West…and North

Truman Appeals to Black Constituency

Truman saw Blacks as key to his 1948 re-election• Polls showed Truman in tight race (and losing)• Issued executive order integrating the armed services• Sponsored the first civil rights bill since Reconstruction

• Made racial lynching a federal crime• Provided federal guarantees for voting rights• Died in the Senate where strong Southern D’s opposed it

•Dixecrats bolt Dem party: nominate Strom Thurmond

• Ran under State’s Rights Party banner• Despite this, Truman wins re-election• Proved the Dems could win w/o South

The Civil Rights Movement

NAACP LITIGATION STRATEGY•Challenged the legal structure of segregation•NAACP successes presaged by 20 years of Democratic Judicial appointments by Roosevelt & Truman•Smith v. Allwrights

• ends White Primaries•Brown v. Board of Education of Topeka

• ends de jure segregation

SOUTH DEFIANT:•Oral Faubus, Governor of Arkansas, refused to desegregate.•Federal troops were ordered into Little Rock in 1957 by Ike to enroll black students in LRHS.•The Little Rock Nine were admitted with federal troops on guard.

In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation today, segregation tomorrow, segregation forever.

- George Wallace

The Little Rock Nine

The King

• The Birmingham Demonstration• Eugene “Bull” Connor – plays into King’s hands with violent

suppression of peaceful demonstration• Dogs set on demonstrators• 2000 demonstrators were jailed• King writes “Letters from a Birmingham Jail” which provide

the philosophical underpinnings of the Civil Rights movement

• As Civil Rights became a prominent national issue, Kennedy could no longer ignore it.

MLK, Jr. - nonviolent resistance•Win the hearts & minds of the people•Societal strategy: mass movement•Legislative not Judicial focus

The Birmingham Demonstration

Key Civil Rights Legislation

The 1957 Civil Rights Act• Permitted vote discrimination suits by Blacks• More political symbol than substantive legislation• Sets the stage for major civil rights legislation in the 1960’s

The 1964 Civil Rights Act• Authorized federal government to end segregation in public

education and public accommodations• Passes with Republican & Northern Democratic Votes• BUT: Goldwater moves Republican Party away from support for

Civil Rights on limited government principles.• Resulted in a HUGE landslide for Johnson.

I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!

- Barry Goldwater

Major Civil Rights Legislation

• The Voting Rights Act of 1965• Authorized federal agencies to guarantee the right to vote

by taking over voter registration or supervising local officials

• Solved the problem inherent to previous legislation that had required proof of discrimination

• Justice Department could suspend restrictive electoral tests in states with low black turnout

• Registration soared for Blacks in the South

• Democrats knew it would result in mostly new Democratic voters

Post-Civil Rights Movement

1970’s to the Present • School Bussing

• implemented to remediate de facto segregation• Very unpopular – social engineering

• Affirmative Action• Requires proof of past discrimination• Had to give special consideration to minorities

• Regents of the University of California v. Bakke• The Bakke case makes the use of ‘quotas’ in AA unconstitutional• but upholds AA which uses race as a ‘factor’

• Adarand Constructors, Inc. v, Pena• Broad AA policies unconstitutional• AA must be ‘narrowly tailored’ • to achieve a ‘compelling governmental interest.’

• California Prop 209

Women’s Rights

Demonstration for the Equal Rights Amendment

Early 20th Century•19th Amendment – women granted the right to vote•Margret Sanger – Planned Parenthood

60’s & 70’s•Equal Rights Amendment•ERA does not pass – Phyllis Schlafly key to its failure. •ERA was linked to the abortion issue, and hence support waned.•Falls 3 states short of passage.

Present•Title IX – prohibits funding to schools that discriminate against women, including in sports.