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Chapter 1
Constitutional Sources of Civil
Rights and Liberties
CHAPTER OUTLINE
I. INTRODUCTION
II. JUDICIAL PROTECTION OF CIVIL RIGHTS AND LIBERTIES
A. Civil Suits
B. Criminal Prosecutions
III. RIGHTS RECOGNIZED IN THE ORIGINAL CONSTITUTION
A. Trial by Jury
B. Circumscribing the Crime of Treason
C. Prohibition of Religious Tests for Public Office
D. Protecting the Writ of Habeas Corpus
E. Ex Post Facto Laws
F. Bills of Attainder
G. The Contracts Clause
IV. THE BILL OF RIGHTS
A. The First Amendment
B. The Second Amendment
C. The Third Amendment
D. The Fourth Amendment
E. The Fifth Amendment
1. The Meaning of Due Process
1. Civil Forfeitures
I. The Ninth Amendment
J. The Tenth Amendment
V. THE CIVIL WAR AMENDMENTS
A. The Thirteenth Amendment
B. The Fourteenth Amendment
2. The Due Process Clause
4. The State Action Doctrine
5. Congressional Enforcement Powers under the Fourteenth Amendment
C. The Fifteenth Amendment
VI. THE NATIONALIZATION OF THE BILL OF RIGHTS
A. Selective Incorporation
VII. LATER AMENDMENTS PROTECTING VOTING RIGHTS
A. The Nineteenth Amendment
B. The Twenty-Fourth Amendment
C. The Twenty-Sixth Amendment
VIII. STANDARDS OF JUDICIAL REVIEW IN CIVIL RIGHTS AND LIBERTIES CASES
A. Minimal Scrutiny: The Rational Basis Test
IX. THE IMPORTANCE OF STATE CONSTITUTIONS AND THE STATE COURTS
X. CONCLUSION
CRITICAL THINKING QUESTIONS
1. Which is more valued in our society, freedom or equality? Are the two mutually
exclusive or can they exist simultaneously? How does this affect the development of
constitutional law?
2. To what extent is constitutional freedom limited to the protection of the individual from
government? To what extent is it the guarantee that the individual be able to realize his or
her potential as a human being?
3. What is substantive, as distinct from procedural, due process?
4. Is the rational basis test a form a substantive due process?
5. Is the incorporation of the First Amendment a form of substantive due process?
6. Under what circumstances might the failure of government to take action constitute a
denial of due process of law?
7. Why should the federal courts be authorized to grant writs of habeas corpus to review
state criminal convictions?
8. Would the Supreme Court uphold an act of Congress making it a crime for private
citizens to possess any and all handguns? How would you view the constitutional
question involved?
9. Would the Privileges and Immunities Clause of the Fourteenth Amendment be a sounder
basis than the Due Process Clause for the incorporation of the Bill of Rights?
10. Why did the Supreme Court rely on the Due Process Clause in its incorporation
decisions?
11. Can you think of a situation in which the constitutional ideals of individual freedom and
equality under the law are in conflict? In such cases, which value should prevail?
12. Consider the controversial issue of whether “enemy combatants” captured as a part of the
“war on terrorism” and incarcerated at the American naval base at Guantanamo Bay,
Cuba should be allowed access to the writ of habeas corpus and the United States federal
courts. Should these individuals be allowed access to the federal courts? Use the relevant
provision(s) of the Constitution to support your position.
13. What are the main pillars of Justice Black’s stated preference for total incorporation as
opposed to selective incorporation? Do you find his arguments convincing?
LECTURE LAUNCHERS
How to Introduce the Constitutional Sources of Civil Rights and Civil Liberties.
Our civil rights and civil liberties are rooted in the Bill of Rights and other various amendments
to the Constitution. However, many students have probably never seen the Bill of Rights. There
will be some students that have seen the historical document on display in Washington, D.C.
However, many students will have only seen the Bill of Rights reprinted in a textbook, as in this
textbook for easy reference. Therefore, to generate a classroom discussion on the provisions of
By clicking the “download high-resolution images” button, you can download a better quality
image of the Bill of Rights, and the other constitutional amendments that protect civil rights. Each
page can then be enlarged for better viewing. As the instructor goes through each amendment, the
image could be a guide to the students.
HYPOTHETICAL PROBLEM (FOR CLASSROOM
DISCUSSION OR ESSAY EXAMINATION)
Plaintiff Marcie Johnson alleged that Officer Steve Jefferies’ negligence in his official duties
caused her to be arrested and jailed without probable cause. Jefferies, who was assigned by a
local police department to investigate instances of child abuse, had received a written report from
the youth services bureau that Johnson’s young daughter had been checked into the hospital with
serious burns. At Jefferies’ request, Johnson came to his office for an interview. She denied
responsibility for the child being burned, explaining that the child’s burns occurred as a result of a
hot water pipe that had broken. Previously the detective learned that Johnson was a single parent
with custody of her daughter, which he controversially testified made Johnson more likely the
Johnson was responsible for the child’s injury. Subsequently Johnson was found not guilty. She
then sued Officer Jefferies under 42 U.S.C.A. §1983, for violation of her constitutional rights.
Jefferies, however, claimed he was entitled to qualified immunity with regard to the §1983
lawsuit. He argued that after receiving the report of the child’s injury, and after the mother, who
agreed to take a polygraph examination, failed to do so, as an experienced police detective he
could reasonably have believed that he had probable cause to have Johnson arrested. Based on
this contention, Jefferies moved the court for a directed verdict that he was not liable.
KEY TERMS
unalienable rights Rights that are vested in individuals by birth, not granted by
government.
natural rights Rights believed to be inherent in human beings, the existence of
which is not dependent on their recognition by government. In
classical liberalism, natural rights are “life, liberty, and
property.” As recognized by the Declaration of Independence,
they are “life, liberty, and the pursuit of happiness.”
liberty The absence of restraint.
equality A condition in which persons hold the same status with respect
to a particular criterion such as wealth, standing, or power.
treason The crime of attempting by overt acts to overthrow the
government, or of betraying the government to a foreign power.
religious tests Tests to determine whether individuals hold “appropriate”
religious convictions.
Establishment Clause Clause in the First Amendment prohibiting Congress from
enacting laws “respecting an establishment of religion.”
Free Exercise Clause Clause in the First Amendment prohibiting Congress from
abridging the free exercise of religion.
ex post facto laws A retroactive law that criminalizes actions that were innocent at
the time they were taken or that increases punishment for a
criminal act after it was committed.
freedom of expression A summary term embracing freedom of speech and freedom of
the press as well as symbolic speech and expressive conduct.
right to keep and bear arms Right to possess certain weapons, protected against federal
infringement by the Second Amendment to the Constitution.
Second Amendment Amendment contained within the Bill of Rights guaranteeing the
“right to keep and bear arms.”
well-regulated militia Body of citizens organized for military service but subject to
government regulation.
Third Amendment Amendment found in the Bill of Rights prohibiting the military
from quartering soldiers in citizens’ homes without their consent.
Fourth Amendment Amendment within the Bill of Rights prohibiting unreasonable
searches and seizures.
unreasonable searches and Searches that violate the Fourth Amendment to the Constitution.
seizures
double jeopardy The condition of being prosecuted a second time for the same
offense.
compulsory self-incrimination The requirement that an individual give testimony leading to his
or her own criminal conviction; forbidden by the Fifth
Amendment.
fair notice The requirement stemming from due process that government
provide adequate notice to a person before it deprives that person
of life, liberty, or property.
fair hearing A hearing in a court of law that conforms to standards of
procedural justice.
procedural due process Set of procedures designed to ensure fairness in a judicial or
administrative proceeding.
Sixth Amendment Amendment contained within the Bill of Rights guaranteeing the
right to counsel and the right to trial by jury in criminal cases.
speedy and public trial An open and public criminal trial held without unreasonable
delay; guaranteed by the Sixth Amendment to the Constitution.
trial by jury A trial in which the verdict is determined not by the court but by
a jury of the defendant’s peers.
subpoena “Under penalty.” A judicial order requiring a person to appear in
court in connection with a designated proceeding.
right to counsel (1) The right to retain an attorney to represent oneself in court.
(2) The right of an indigent person to have an attorney provided
at public expense.
forfeiture Sacrifice of ownership or some right (usually property) as a
penalty.
Ninth Amendment Amendment contained within the Bill of Rights that recognizes
rights retained by the people even though they are not
specifically enumerated in the Constitution.
right of privacy Constitutional right to engage in intimate personal conduct or
make fundamental life decisions without interference by the
state.
Equal Protection Clause Clause in Section 1 of the Fourteenth Amendment that prohibits
states from denying equal protection of the laws to persons
selective incorporation Doctrine under which selected provisions comprising most of the
Bill of Rights are deemed applicable to the states by way of the
Fourteenth Amendment.
censorship Broadly defined, any restriction imposed by the government on
speech, publication, or other form of expression.
literacy tests A test of reading and/or writing skills, often given as a
prerequisite to employment. At one time, literacy tests were
required by many states as preconditions for voting in elections.
white primary Historically, a primary election in which participation was
limited to whites.
alleged infringements of civil rights or liberties.
rational basis test The test of the validity of a statute inquiring whether it is
rationally related to a legitimate government objective.
presumption of The doctrine of constitutional law holding that laws are
constitutionality presumed to be constitutional with the burden of proof resting on
INSTRUCTOR RESOURCES
Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in
the United States (8th ed.). Lawrence: University Press of Kansas, 2003.
Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale
University Press, 2000.
University Press, 1982.
Sarat, Austin, and Thomas R. Kearns. Legal Rights: Historical and Philosophical Perspectives.
Ann Arbor: University of Michigan Press, 1996.
Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights. NY:
Oxford University Press, 1977.
1996.
Walker, Samuel. In Defense of American Liberties: A History of the ACLU (2nd ed.). Carbondale:
Southern Illinois University Press, 1999.
NOTES ON EXCERPTED CASES
EX PARTE MILLIGAN (1866).
Lambdin P. Milligan, a civilian residing in Indiana, was an active collaborator with the
Confederacy. In 1864, he was arrested and tried for treason by a military commission established
by order of President Lincoln. Milligan was convicted and sentenced to death, but the sentence
was not carried out. In 1866, some time after hostilities had ceased, the Supreme Court reviewed
the conviction. Its landmark decision in Ex parte Milligan was a ringing endorsement of civil
liberties. The Supreme Court took note of the fact that the civilian courts were open and operating
in Indiana when Milligan was arrested and tried by the military. In ordering Milligan’s release,
BOUMEDIENE v. BUSH (2006).
In this case the Supreme Court reviewed the Military Commissions Act (MCA), which was passed in
response to the Hamdan decision in an effort to prevent enemy combatants held outside of the United
THE SLAUGHTERHOUSE CASES (1873).
Here a narrowly divided Supreme Court upheld Louisiana’s grant of a monopoly in the
slaughtering business in and around New Orleans. Although officially designated as “An Act to
Protect the Health of the City of New Orleans...,” the law was not in any meaningful sense a
health measure. Its only apparent effect was to remove more than a thousand persons from the
slaughtering trade. A number of these persons filed suit, maintaining that the State had conferred
Amendment as the protection of the civil rights of former slaves, although he was unwilling to
say that no one else was entitled to this protection. In a strong dissenting opinion, Justice Field
countered that “The privileges and immunities designated, are those which of right belong to the
citizens of all free governments.” While agreeing with Field’s position regarding the broad
protection that should be afforded by the Privileges and Immunities Clause, Justice Bradley went
THE CIVIL RIGHTS CASES (1883).
In adopting the Civil Rights Act of 1875, Congress attempted to eradicate racial discrimination in
“places of public accommodation,” including hotels, taverns, restaurants, theaters and “public
conveyances.” In these five similar cases consolidated for review, the Supreme Court struck
down the key provisions of this act, ruling that the Fourteenth Amendment limited Congressional
action to the prohibition of official, state-sponsored discrimination as distinct from discrimination
SHELLEY v. KRAEMER (1948).
This case arose when an African-American couple, the Shelleys, bought a home that was covered
by a restrictive covenant that prevented sale of the property to buyers of certain races; three-
among the civil rights protected by the Fourteenth Amendment. Indeed, according to Vinson, the
framers of the Fourteenth Amendment considered property ownership a necessary prerequisite for
the realization of other civil rights and liberties. Vinson acknowledged that there was no state
action involved in the restrictive covenants and that the Fourteenth Amendment “erects no shield
against merely private conduct, however discriminatory or wrongful.” Thus, on their own, the
restrictive covenants did not violate the Equal Protection Clause. For the covenants to have their
BARRON v. BALTIMORE (1833).
There is little doubt that, at the time of its ratification in 1791, the Bill of Rights was widely
perceived as imposing limitations only on the powers and actions of the national government.
This is suggested by the first clause of the First Amendment, which begins, “Congress shall make
no law. ...” The Court held as much in 1833 in the case of Barron v. Baltimore, when it refused to
permit a citizen to sue a local government for violating his property rights under the Just
Compensation Clause of the Fifth Amendment. The case stemmed from an incident in which the
city of Baltimore diverted the flow of certain streams, causing silt to be deposited in front of John
Barron’s wharf, making it unusable. Barron brought suit in state court, claiming that since the
City’s action amounted to a taking of private property, he was entitled to “just compensation”
CHICAGO, BURLINGTON, & QUINCY RAILROAD COMPANY v. CHICAGO (1897).
Here a conservative Supreme Court concerned about protecting private enterprise against a rising tide
of government interventionism held that the Due Process Clause of the Fourteenth Amendment
imposed on state and local governments the same obligation to respect private property that the Fifth
Amendment imposed on the federal government. The Court said that when a state or local
PALKO v. CONNECTICUT (1937).
In this case the Supreme Court refused to incorporate the Double Jeopardy Clause of the Fifth
Amendment into the Due Process Clause of the Fourteenth. Firmly rejecting the notion of total
incorporation, to merit incorporation, said Justice Benjamin N. Cardozo, a provision of the Bill of
Rights must be essential to “a scheme of ordered liberty.” Cardozo’s majority opinion suggested
that the First Amendment freedoms which had been previously incorporated, represented “the
ADAMSON v. CALIFORNIA (1947).
In Hurtado v. California (1886) the Supreme Court held that the grand jury requirement of the Fifth
Amendment was not an essential element of due process and therefore did not have to be followed in
state prosecutions. In Twining v. New Jersey (1908), the Court held that the Fifth Amendment
protection against compulsory self-incrimination did not have to be honored in state criminal trials.
The Court revisits this question in the instant case. The student should pay close attention to the
different theories of Fourteenth Amendment due process espoused in the various opinions in this case.
ROCHIN v. CALIFORNIA (1952).
Rochin was convicted for possession of narcotics after the police had his stomach
pumped to retrieve capsules he had swallowed to avoid arrest. Having granted cert, the
Supreme Court unanimously reversed Rochin’s conviction. Writing for the Court, Felix
Frankfurter concluded that the officers’ conduct in the case “shocked the conscience” and
was therefore invalid under the Due Process Clause of the Fourteenth Amendment. In
concurring opinions, Justices Black and Douglas objected to the broad due process
DUNCAN v. LOUISIANA (1968).
Here the Supreme Court made the right of trial by jury applicable to defendants in state criminal
cases. In a concurring opinion joined by Justice Douglas, Justice Black expressed his satisfaction
MCDONALD v. CHICAGO (2010).
Otis McDonald, along with others, challenged a Chicago ordinance that stated “[n]o person shall
… possess … any firearm unless such person is the holder of a valid registration certificate for
such firearm.” The ordinance also prohibited “registration of most handguns, thus effectively
banning handgun possession by almost all private citizens who reside in the City.” The City of
Chicago enacted “its handgun ban to protect its residents ‘from the loss of property and injury or
death from firearms.’” After the Supreme Court announced its decision in District of Columbia v.
Heller, McDonald filed a lawsuit against the City of Chicago seeking a declaratory judgment that
the handgun ban and other related ordinances violated the Second and Fourteenth Amendments to
