Reading/Lecture 2

Civil Liberties & Civil Rights

Civil Liberties
Civil Rights

Civil Liberties and Rights

Often used interchangeably
Liberties are freedoms the government
cannot limit - speech, religion, petition.
Rights are freedoms granted explicitly by
the government
reflects the will of the people
may be imbedded in the constitution
citizenship, suffrage, equal treatment in
employment

Bill of Rights
U.S. Bill of Rights - 1st ten amendments to the
constitution
agreed to before ratification to ensure government was
explicitly limited.

Texas Bill of Rights - First article in the constitution

stated first to reinforce its importance.

New Judicial Federalism - state efforts to expand

freedoms above the federal levels.

Application of Bill of Rights

to All States

1897 Chicago R.R. v. Chicago - V

1925 Gitlow v. New York - I Speech
1931 Near v. Minnesota - I Press
1934 Hamilton v. Univ of Cal Regents - I Religion
1939 Hague v. CIO - I Assembly
1949 Wolf v. Colorado - IV Unnecessary search
and seizure
1961 Mapp v. Ohio IV Warrantless search and
seizure
1962 -1966 III, V, VI

Texas Civil Liberties

34 Sections of Article 1 of Constitution
More affirmative than US Bill of Rights
Preferred fundamental freedom necessary
for democracy - speech, assembly, petition,
religion
Begins with equal protection
Followed by 1st amendment freedoms
In most cases more restrictive than the
Bill of Rights

Freedom of Speech and Press

Foundation of democracy is deliberation
These freedoms ensure open deliberation
Texas upheld these freedoms before US
Supreme Court forced states to apply
these freedoms

Limiting Speech
Clear and present danger
Prior restraint - prevention of publication
only when there is a real and immediate inescapable
harm
and there is no alternative which would violate freespeech less
These criteria have never been met

Controlling law - a court decision that

determines how substantive cases should be
decided.
Marsh v. Alabama
NWFC v. Barton Creek Mall
Right to Life Advocates v. Aaron Womens Clinic

Right of Remonstrance
Similar to right of petition and address of the
government
Petition can be a one way conversation
Remonstrance requires the governing body to
reply to the petition
Remonstrance requires two way
communication and therefore more deliberation

Freedom of Religion
More specific prohibitions against use of
religion tests in employment and discrimination
Employment Division v. Smith - Oregon 1990,
Court denies appeal.
Religious Freedom Restoration Act - 1993
City of Boerne v. Flores - 1997 using RFRA as
basis for case.
Court denies appeal claiming RFRA is
unconstitutional.
Texas Legislature enacts own version in 1999.

Due Course of Law

All procedural rules will be followed in case
considering rights of the accused.
Due process guaranteed by 14th amend
Due course guaranteed by Section 19 of Article
1 of Texas Constitution
grants affirmative right of people without regard to
state government
includes disenfranchisement (life, liberty, property,
privileges and immunities)
open court provision for access to judicial system
guaranteed for redress of grievances and settling
disputes

Search and Seizure

4th Amendment in Bill of Rights
Section 9 of Article 1 of Texas
Constitution
Texas more restrictive in that warrant
must be described as near as can be

Self Incrimination
Pleading the 5th
Pleading Section 10 - Article 1
Texas Court of Criminal Appeals has
more broadly interpreted violation of
Miranda Rights
waiving Miranda rights without a lawyer
present is unconstitutional

Exclusionary Rule
Excluding evidence collected illegally
U.S. and Texas interpretation identical
In Texas other person phrase is
included which means evidence can be
illegally collected by a private person as
well as police.

Confrontation
Right to confront witnesses against the
accused
Attempts to balance witness concerns
and the rights of the accused
Even in sexual abuse cases the video
taping testimony of children is not
considered constitutional.

Civil Rights
Topical Scenario
Civil Rights

Topical Scenario
Fictional Account of Sexual Harassment
Supervisor pressures subordinate with sex
for promotion
Employee complains to management
where it is addressed as just a problem of
corporate culture.
Civil suit for sexual harassment
Federal versus State suit
State suit offers better chance of success

Civil Rights
Based on 14th Amendment to U.S.
Constitution
Rights granted by the government
Citizenship
Voting
Equal protection in education,
employment, housing

Citizenship
Not everyone qualifies
It is a prerequisite for other rights
Residency requirements one way to
determine citizenship
Full citizenship occurs at age 18
Citizenship and college costs - out of state
and foreign student tuition at state schools

Voting

Basic freedom in representative democracy

Universal suffrage has come slowly
Texas Constitution prohibits voter registration
13th, 14th, 15th Amendments
Jim Crow laws in southern states
white only primaries
poll tax
literacy tests

U.S. Suffrage Enforcement

Court declares white primaries
unconstitutional in 1944.
24th Amendment ends poll tax in national
elections (1964)
US v. Texas (1966 - Extended it to state elections)

26th Amendment lowers voting age to 18

Voting Rights Act of 1965 - prohibits states
from using anything as a prerequisite to voting

State Reaction
Voting Dilution
Voting Dilution - spreading minority vote to
dilute and control representation.
- Gerrymandering
- Majority runoffs
- At-large Elections
- Straw candidates
- Restrictive registration
- State election dates

Equal Protection
Similar to equal rights
Granting equal opportunity in education
and employment
U.S. Supreme Court levels of scrutiny
strict scrutiny requires a compelling state
interest to limit equality
intermediate scrutiny requires state to
demonstrate more than a rational basis for
limiting equality
rational-basis test requires state to have a
rational argument for treating people
differently

Types of US Court Standards

Strict scrutiny applies to suspect
classification of race, ancestry, national
origin, right to: vote, criminal appeal,
interstate travel, procreation, parentchild relations, marriage, confrontation
in court.
Intermediate scrutiny applies to cases
dealing with aliens, illegitimate children,
and gender issues.
All the rest treated under rational-basis

Texas Application of ERA

Equal Rights Amendment - Section 3a of
Article 1
Prohibits gender based discrimination.
Texas Court applies strict scrutiny rule.
Additionally the state must show that no
other nondiscriminatory action is
possible.