Chapter 5-First Amendment: Basic Freedoms

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Prepared by Tony Wolusky, J.D. , Metropolitan State University of Denver

Chapter 4

Equal Protection Under the Law: Balancing

Individual, State and Federal Rights

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 The framers of the Constitution wanted to prevent excessive federal authority.

 They wanted to give states more authority, but resulted in problems the national government could not overlook.

 There were several issues:

o State bank and money versus national banks and currency,

o federal aid versus state aid to improve roadways and railway

o freedom versus slavery

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 President Lincoln was elected in 1960.

o Soon after many states passed a resolution to

withdraw from the Union.

 President Lincoln was faced with trying to keep the

Union together.

 He promised to abolish slavery in the territories,

but under the Constitution, slavery was legal in the

states where it had been established.

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 Dred Scott v. Sandford

o Supreme Court ruled that even free blacks could not be

citizens of the United States and that they “had no

rights which a white man was bound to respect.”

 The southern states were not convinced and the Civil

War ensued.

 It pitted American against American and sometimes

brother against brother.

 Hundreds of thousands wounded and killed.

 Caused a divide that still affects the country to this

day.

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 April 1862, slavery was abolished in the District of

Columbia and 2 months later in all the territories.

 January 1, 1863, President Lincoln declared free

all the slaves in all districts of the United States in

his Emancipation Proclamation.

o Set a national tone toward abolishing slavery.

 13th Amendment was ratified in 1865 and

abolished slavery.

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 Even though slavery was now abolished with the 13th

Amendment, states continued to discriminate.

o Many southern states passed Black Codes

 Congress passed the 14th Amendment in 1868 which

gave blacks citizenship, and granted citizenship to all

persons born or naturalized in the United States.

 The 14th Amendment also forbids the states to deny

their citizens due process of law or equal protection of

the law.

o Certain provisions of the Bill of Rights were made

applicable to the states as well

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 Section 1 of the 14th Amendment states that all

people born or naturalized in the United States are

citizens of the United States and of the state in

which they reside, effectively overriding the Dred

Scott decision.

 It also prevents federal and state governments

from abridging the privileges of citizens or to deny

any citizen equal protection of the law or deprive

them of life, liberty or property without due

process of the law.

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 Due process provides rules and procedures to

ensure fairness and prevent arbitrary government

actions.

 Procedural due process refers to how laws are

applied.

 Substantive due process, on the other hand,

requires that the laws themselves be fair, not just

how the laws are enforced.

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 Prevents state or local governments from

infringing on people’s rights when federal

government would not be allowed to.

 It holds that only the provisions of the Bill of

Rights fundamental to the American

scheme of justice are applied to the states

through the due process clause of the 14th

Amendment.

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 Facts: Duncan requested a jury trial and was denied, then

found guilty of battery with a maximum sentence of two

years imprisonment.

 Issues: Is the denial of the jury trial in a state criminal

prosecution, where a sentence of up to two years

imprisonment is possible, a violation of the 6th and 14th

Amendments?

 Holding: Yes.

 Rationale: The right to a jury trial is fundamental to the

American scheme of justice.

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 The Supreme Court found that the Connecticut law

making contraceptives illegal violated a “right to

privacy” in regard to marriage within the 14th

amendment.

 The Court asserted that certain rights and

liberties, even though not specifically stated in the

Constitution, exist because specific guarantees in

the Bill of Rights have penumbras or peripheral

rights implied along with them.

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 Rights explicitly listed in the Bill of Rights (enumerated) are

applied to the states through incorporation and are almost

always evaluated with the strict scrutiny test.

 Nonenumerated rights are those that are implied in the

concept of ordered liberty, using the due process section of

the 14th Amendment covering proceedings involving life,

liberty and property.

 If state interference in these nonenumerated rights

involves a fundamental right (generally those involving civil

rights), strict scrutiny is applied. If not fundamental, the

courts apply the rational basis test instead.

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 Issue: Does a state law forbidding a baker to work

more than 10 hours in a day or 60 hours a week

violate the liberty protected by the 14th

Amendment?

 Holding: Yes.

 Rationale: The Supreme Court decided the law is

not reasonable and interferes with the right

contract found in the liberty aspect of the Due

Process Clause.

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 Issues: Does New York law that establishes a minimum

milk price violate the Due Process Clause?

 Holding: No.

 Rationale: The Supreme Court in contrast to the older

Lochner case, decided that in the area of social and

economic legislation, if the law is not arbitrary and has a

reasonable relation to promoting public welfare, the courts

are without authority to override it.

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 Prejudice- is an attitude, commonly known as a

negative attitude regarding a person or thing.

 Discrimination- is an action or behavior based on

prejudice.

 In a democratic society, people are free to think

what they want.

 When these thoughts become socially unacceptable

behaviors, the government is justified in intervening.

 Laws exist to punish the actor and protect the victim.

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 Racial discrimination existed well before colonization and

the Constitution.

 The 13th Amendment did not outlaw unequal treatment or

change racial attitudes.

o Dred Scott (1856) decision ruled that freed slaves did

not have the right to remain free in a territory where

slavery was still legal.

o Plessy v. Feguson (1896) showed the Court’s desire to

avoid civil rights issues, declaring discrimination to be

outside the realm of the Court.

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 Racial tension mounted as states passed

laws to ensure that Whites could maintain

their privileged status.

 These laws were known as Jim Crow Laws

o Strictly segregated Blacks from Whites in

schools, restaurants, streetcars,

hospitals, and cemeteries.

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 Many laws were passed that prohibited

discrimination based on race, color, religion,

sex or national origin in employment and

education in public and private sectors at

the federal, state and local levels.

o The Equal Pay Act of 1963

o The Civil Rights Act of 1964

o The 1972 Equal Opportunity Act

o 1972 Equal Education Act

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 The Nixon Administration formed the affirmative

action programs.

 They were created to spread equal opportunity

throughout the diverse American population.

 They were designed to cure discrimination in hiring

and eliminate past, present and future

discrimination using race, sex, color, and age as

deciding criteria.

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 Facts: The defendant was African-American and the

prosecutor used the state’s peremptory challenges to

remove all four prospective black jurors, leaving an all

white jury that ultimately convicted Batson.

 Issues: Can use of peremptory challenges be

unconstitutional?

 Holding: Yes.

 Rationale: The Court ruled that the use of peremptory

challenges to deliberately produce a racially unbalanced

jury was unconstitutional.

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 Must distinguish between discrimination and

disparity.

o Disparity is a difference, but one that does not

necessarily involve discrimination.

o Discrimination is the differential treatment of groups

without reference to an individual’s behavior or

qualifications.

• The degree and prevalence of discriminatory treatment

within the criminal justice system exists along a continuum

between the extremes of pure justice and systematic

discrimination.

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 Criminal justice system is characterized by

contextual discrimination.

o Racial minorities are treated more harshly

at some points and in some places in the

criminal justice system but no differently

than Whites at other points and in other

places.

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 Facts: Evidence established the systematic exclusion of

African-Americans from jury service in 2 Alabama cities.

 Issues: Is this consistent with the 14th Amendment?

 Holding: No.

 Rationale: Court acknowledged that exclusion of African

Americans on juries constituted an equal protection

violation.

 The ruling was ineffectual and African Americans remained

underrepresented on juries.

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 Right- a legally protected claim.

 Privilege- a claim that is not legally

protected.

 Cooper v. Pate (1964)

o Inmates could sue the warden for

depriving them of their constitutional

rights under Section 1983 of the U.S.

Code.

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 Race discrimination

o Segregating racial groups, assuming they will be

in conflict otherwise, violates the equal

protection component of the 14th Amendment.

 Discrimination against the disabled

o Correctional facilities were required to provide

special accommodations, programming and

services to disabled inmates.