Civil Liberties and the Constitution

Cases and Commentaries

Lucius Barker, Michael Combs, Kevin Lyles, H Perry, Jr., Twiley Barker

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317349518
• Edition: 9
• Topic: Jura
• Subtopic: Zivilrecht

Updated in a new 9th edition, this casebook explores civil liberty problems through a study of leading judicial decisions. It offers a reasonable sample of cases across a broad spectrum of rights and liberties. This book introduces groups of featured cases with in-depth commentaries that set the specific historical-legal context of which they are a part, allowing readers to examine significant portions of court opinions, including major arguments from majority, concurring, and dissenting opinions.

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PART I

A FRAMEWORK FOR ANALYSIS

ABORTION, THE DEATH PENALTY, SCHOOL PRAYERS, affirmative action, school desegregation, homeland defense, the rights of persons accused of crimes, and lifestyle practices encapsulate issues that continue to evoke and engender sharp division and debate in our society and politics. The division and debate penetrate both private and public sectors and are clearly evident in our politics—in elections, state and local governments, congressional and presidential politics, the Supreme Court, and our court system. Thus, a continuing analysis of the overall political–social context remains important for students and others who are interested in a study of civil liberties.

This political–social context influences and is in turn influenced by actions and policies, including those which relate to civil liberties and that emanate from elective political institutions (e.g., the president and Congress) and from nonelective governmental institutions (e.g., administrative agencies and federal courts). Actions and policies of presidential administrations, as well as of the Warren, Burger, Rehnquist, and Roberts Supreme Courts, exemplify vividly how these institutions affect our civil liberties. They also demonstrate the important interaction of law and politics in the development and enforcement of civil liberty policies. The major point here is that, given the inextricable relationships of courts, law, and politics, we should keep this overall political–social context in mind as we discuss various issues in civil liberties.

This book represents a collation of the leading decisions of the Supreme Court on civil liberties. The U.S. Supreme Court plays an important role in dealing with civil liberties and civil rights problems. Indeed, the Court exercises final authority with respect to legal interpretations of our national Constitution and federal laws. As such, its decisions are analyzed and studied with special care and attention. Although they are extremely important, decisions of the Court cannot be studied in a vacuum, particularly positions of the Court on highly controversial questions, which civil liberties and civil rights issues tend to be.

Under such circumstances, Court decisions become only one consideration, albeit a very important one, in the determination of policy and practice related to given issues. Consider, for example, the celebrated decisions of the Warren Court in the 1954 school segregation cases. Certainly, public policy involving school desegregation, much less the actual practice of desegregation, cannot be discussed by a mere reading of decisions of the Court. Many other factors must be considered to determine the policy and practice of school desegregation, such as the policy positions and attitudes of the president, governors, mayors, Congress and state legislatures, city councils, school boards, school superintendents, and chiefs of police. Of course, public opinion and community attitudes must also be considered.

The same or similar factors must be considered in discussing policies and practices respecting other salient civil liberty problems, such as abortion, capital punishment, obscenity and pornography, privacy, state aid to parochial schools, affirmative action, and the rights of the accused. The fact is that Court decisions on matters of great controversy, like decisions emanating from other decision-making institutions, are seldom, if ever, final. They continue to be subject to the pressures of interests that stand to gain or lose depending on particular outcomes.

In this overall context the purpose of these introductory chapters becomes apparent. Certainly we cannot fully explore in two short chapters the many factors that are involved in the definition, enforcement, and implementation of civil liberties and civil rights policies. Our hope, however, is that these chapters will serve as constant reminders that leading cases of the Supreme Court, which constitute the bulk of this volume, must be analyzed in the overall political–social context of which they are a part.

This context includes considerations such as the nature, structure, and operation of our constitutional governing system, the nature and culture of American politics and society, and the impact of important developments and conditions at home and abroad on civil liberties (e.g., elections, advances in science and technology, the state of the economy, and crises in domestic or foreign affairs).

Clearly it is difficult to objectively measure the relative impact of these kinds of broad, often amorphous, considerations. Even so, it is clear that certain considerations do have variable impacts on particular rights and liberties that we may or may not exercise or enjoy at certain times and in certain circumstances. We will focus attention on certain factors and considerations that may help us better understand the dynamic framework in which we must assess our rights and liberties. In Chapter 1, for example, we look at the nature of law and courts and view them in the political–social context in which they function and operate. In Chapter 2, the discussion focuses directly on how our rights and liberties are affected by the nature and dynamics of federalism and the federal system.

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CHAPTER 1

LAW AND COURTS IN POLITICAL-SOCIAL CONTEXT

COURTS AND LAW MUST BE VIEWED IN THE OVERALL political–social context of which they are a part. Here we consider how the functioning of courts is affected by the importance that Americans attach to constitutionalism and the rule of law, and by systematic structures such as federalism and the separation of powers. We also examine the influence of interest-group politics and public opinion, which loom as important factors in policy conflict. Finally, we discuss in this chapter how these various features and factors come into full focus in judicial selection, a clear indication of the relative role and importance of courts, especially the U.S. Supreme Court, in American politics and policy-making.

Americans are legally oriented. This legal orientation is evident in our almost reverent allegiance to doing things according to law. It is this attachment to law, based on strong traditions, that allows courts and the legal profession to exercise an enormous amount of power and influence in the American political system. It is not surprising, then, that many people who are interested in bringing about changes in civil liberties have taken the judicial route in attempts to achieve their objectives. Consequently, in a general discussion of policy development, especially civil liberties policy, we must give close attention to the role of courts.

The highest law in the American legal order is the Constitution. All other types of law—rules, regulations, practices, statutes, administrative orders, or customs—must conform with the Constitution. Herein lies the crucial role of courts, especially the Supreme Court. Long ago, in Marbury v. Madison (1 Cr. 137, 1803), Chief Justice John Marshall proclaimed that it is “emphatically” the province of the judiciary to determine whether particular laws, rules, and regulations conform with the Constitution. According to Marshall, the Constitution had authorized the courts, and no other institution of government, to make such a determination. This power of judicial review has long since become firmly entrenched in our constitutional and legal fabric.

Judicial review gives the courts an important and crucial role in American politics and in the determination of public policies. Nowhere is this truer than in the articulation and development of civil rights and civil liberties policy. Consider the important values embodied in the Bill of Rights. The First Amendment, for example, declares that Congress may not pass laws “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Or consider other provisions of the Bill of Rights, such as the prohibitions against unreasonable searches and seizures, protection against self-incrimination, and other provisions safeguarding the rights of the accused. In addition, consider provisions of the Civil War amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments prohibit slavery and involuntary servitude, guarantee due process and equal protection during legal proceedings, and prohibit denial of the right to vote on account of race, color, and previous condition of servitude. The Nineteenth Amendment prohibits abridging the right to vote on account of gender. The Twenty-Fourth Amendment forbids denial of the right to vote in national elections for failure to pay any poll tax or other tax. (Harper v. Virginia, 1966, outlawed payment of poll taxes in state elections.) The Twenty-Sixth Amendment says that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Judicial review permits courts to determine whether these rights or guarantees have been violated in particular cases.

But courts do more than exercise the power of judicial review by determining whether various acts are in accordance with the Constitution. A major part of the workload of courts consists of cases that deal with statutory interpretation. In these cases, courts are called on to interpret and apply statutes (laws and ordinances) such as those which are enacted by Congress and based on the wording of the statute and other factors, but which do not directly refer to the Constitution. In many ways, then, how judges interpret statutes can prove crucial in determining who wins or loses as a result of specific legislative enactments.

For example, Title IX of the federal Education Amendments of 1972. Title 20 U.S.C. Sections 1681–1688 prohibits gender discrimination in “any education program or activity receiving federal financial assistance” and declares that failure to comply with the law could result in termination of federal assistance. But when the Supreme Court interpreted this provision of the law in its 1984 decision in Grove City College v. Bell, the Court ruled that although the college was such a “recipient,” the force of the law’s antisex discrimination provisions could be applied only to the specific program or unit receiving such financial assistance and not to the college as a whole. In short, failure to abide by antisex discrimination provisions in one such program or activity would not cause the college to lose all its funding under Title IX. Undoubtedly, this judicial interpretation of the statute severely limited the scope and effect of the statute as a tool for combating gender discrimination. As a result, Grove City elicited a storm of protests from civil rights groups and many others who saw the decision as a threat not only to federal laws banning gender discrimination but to laws that ban other forms of discrimination as well, such as discrimination on the basis of race or against the handicapped.

Thus, here, as in other instances, the meaning of a particular statute is nothing more or less than what the courts say it means. The Court does not necessarily have the final word in matters of statutory interpretation, though. If Congress does not like the Supreme Court’s interpretation of a statute, it may change the law to overcome the Court’s interpretation. And this is exactly what Congress did in 1988 when it passed the Civil Rights Restoration Act to overcome the effects of Grove City. Similarly, after protracted battles between President George H.W. Bush and Congress (including several leading Republicans who opposed Bush), Congress passed the Civil Rights Act of 1991. This law attempted to overcome a number of controversial Supreme Court decisions involving interpretations of affirmative action policies under several congressional statutes. The scope of the legislative enactment, however, was subsequently limited by the Court’s decision that the act did not apply to cases that were pending appeal at the time of the legislation’s enactment (Landgraf v. USI Film Products, 1994). This example shows how interactions between the Court and Congress take on a dialogic quality.

In any event, the ambiguity of language found in many statutes, which might reflect compromises that were needed for their initial enactment, obviously means that “the opportunities for the exercise of judicial discretion in statutory interpretation are both frequent and wide.”¹ When we combine this role of the courts in statutory interpretation with that of constitutional interpretation (judicial review),² we begin to understand more clearly the enormous importance of courts and judges in the formulation of civil liberties policies and in the political process generally. And that importance, as the previously mentioned Civil Rights Act of 1991 indicates, suggests that the way the courts interpret statutes passed by legislative bodies is likely to play an increasing role in the battle over civil rights and civil liberties.

This v...