Civil Rights/Constitutional Law

In this section, we'll look both at the basic civil rights guaranteed to citizens through the U.S. Constitution and the rights bestowed on citizens through special statutes. In most cases, the statutes were enacted in order to supplement, clarify, or expand rights previously guaranteed in the Constitution.


We'll then look at how those rights get protected, focusing on both the interplay between the judicial branch and the legislative branch and the interplay between the federal and state systems.


U.S. Constitution. The U.S. Constitution, which went into effect in 1789, established that the U.S. federal government would consist of three branches – the executive, judicial, and executive – and it established the various powers that those branches would have.


Bill of Rights. As conditions evolved, the Constitution has been amended 26 times over the years as conditions evolved, such as to forbid slavery and to give women the right to vote. The first 10 amendments are called the Bill of Rights, and they are the constitutional source of most of what we think of today as our guaranteed rights and freedom: free exercise of religion, free speech, peaceable assembly, redress for grievances, right to bear arms, freedom from unreasonable search and seizure, freedom from double jeopardy, freedom from self-incrimination, due process, speedy trials, right to jury trials in certain cases, and the right to an attorney in a criminal case, among others.


Civil rights legislation. When we think of civil rights today, we tend to think of rights granted to minorities, most notably through the Civil Rights Act of 1964, which forbade discrimination based on race, color, religion, sex, and national origin. Other laws have been passed to protect other groups deemed worthy of proctection, such as laws to probihit discirmination based on age, disability, and sexual orientation. Still other laws have been passed to protect certain groups in certain situations, such as the Title IX law banning sex discrimination in higher education.


Inchoate rights. Another set of rights have evolved from U.S. Supreme Court decisions interpreting the Constitution. Though these rights didn't exist explicitly in the Constitution, they were determined by the Court to have been implied by the Constitution. For example, the right to privacy, which includes the right to an abortion, and the right to equal protection under the federal laws are now considered to be constitutional protections, although they were not specifically set out in the Constitution. The various courts fought the battle to interpret the Constitution throughout the 19th and 20th centuries, and it continues to this day.


Judiciary vs. legislative. A second source of contention around the Constitution is the turf wars between Congress, on the one hand, and the federal judiciary, on the other. The Constitution gives Congress the exclusive authority to enact laws. The Constitution gave the federal judiciary the right to try cases brought under the Constitution and other federal laws. That role has subsequently been interpreted to include the power to pass judgment on whether laws Congress passes are constitutionally valid. Thus, the U.S. Supreme Court has a veto-type power over laws that Congress passes, which has caused some tension between the branches.


State vs. federal. The third source of contention around the Constitution is where to draw the line between federal power and state power. The Constitution sets out the areas where Congress shall have power, such as to lay and collect taxes, regulate commerce with foreign nations, and to coin money. The 10th Amendment provides that powers not delegated to the federal government by the Constitution are reserved to the states. These two rules leave a lot of room for interpretation, which has been the source of much of the friction in determining where the federal government's power ends and the state government's power begins. The dispute is generally resolved by the federal judiciary.


Due process. In any discussion of the Constitution, however brief, it's important to understand a couple of additional protections guaranteed in the Constitution that have played a critical role in constitutional law.


The first one is due process. The 5th Amendment provides that the federal government cannot deprive any person of life, liberty, or property without due process of law. The 14th Amendment applies the same rule to the states. There are actually two types of due process, procedural and substantive, but for purposes of this discussion, we are only going to address procedural.


Procedural due process requires that the government provide certain minimum protections and procedural rignts to someone who is in risk of losing life, liberty, or property. For example, the government cannot take possession of your car because they suspect it was involved in a drug deal without giving you a right to be heard and to contest the finding. Similarly, the government cannot deny your application for disability benefits without giving you the chance to appeal the decision.


The first point to remember about due process is that it must involve a loss of life, liberty (for example, being imprisoned), or property. The second point is determining what process is actually due. The courts will weigh the various interests involved to determine what is fair. The third point is that the due process requirement applies to states and the federal government only. If a private country club denies you membership, you don't have a constitutional right to appeal the decision.


Equal protection. The other protection that needs to be understood is the equal protection clause. The 14th Amendment provides that the states cannot deny someone within that state equal protection of the law. Although there is no similar provision for the federal government, the courts have determined that the Fifth Amendment due process clause, in effect, provides equal protection.


Equal protection means that people are supposed to be treated equally. Challenges based on equal protection tend to occur where the law classifies people differently. For example, suppose a state, concerned about a recent increase in traffic accidents, passed a law that anyone 70 or older had to be retested annually and had to pay a higher licensing fee. Drivers 70 and older might challenge the law on equal protection grounds.


In determining whether laws treat people equally, the courts have used three levels of scrutiny to determine if a law is constitutionally valid, although the middle level is not used so much. The courts will use the highest level of scrutiny for those laws involving groups of people who have a history of being discriminated against, and the lowest level where the people complaining of unfair treatment do not have a such a history.


The highest level of scrutiny is called strict scrutiny. Where strict scrutiny is applied, the court will determine if the classification is necessary to a compelling government interest, which is a difficult standard to meet. This level of scrutiny is generally reserved for those cases involving what is called a suspect classification, which means a group that has a history of discrimination.


The middle level of scrutiny is reserved for those cases tht involve what is called a semi-suspect classification. Two examples are gender and race, where the race being given an advantage is one that has a history of discrimination. The test is whether the classification is substantially related to an important government interest.


The lowest level of scrutiny, which means the easiest one to pass constitutional muster, is called rational basis scrutiny. It requires only that a classification is rationally related to a legitimate government interest. If a classification is reviewed using this level of scrutiny, it generally will not be invalidated.


State action. One of the most confusing notions about constitutional law for the non-lawyer is the notion of state action. The 5th and 14th Amendments address acts by states. They do not touch purely private conduct. Thus, if a purely private country club decides not to admit women, the Constitution does not prohibit their actions. If they were to punish a member for exercising his free speech rights, the Constitution does not prohibit their actions.


Some federal laws might reach their conduct – for example, they could not discriminate in their hiring practices – but they are not constitutionally bound to give equal protection or due process. In some cases, of course, what might seem to be a private enterprise does have government connections. A private hospital, for example, that received government loans or Medicaid/Medicare payments would be covered by the Constitution. Their actions would be considered to be state actions because of the connection to the government.



Absolute rights. There is one final point to remember on constitutional rights. They are not absolute. If they were, we could say anything we wanted at any time and get away with it, which we know is not true. We cannot, for example, scream "fire" in a crowded theater, we cannot make libelous statements about others without consequences, and commercial network programs cannot use profanity. Free speech, like the rest of the rights guaranteed by the Constitution, are limited, and they get balanced against one another.



This IS NOT intended to be legal advice or in any way replace the advice and judgment of a licensed lawyer. Every case and situation is unique and only a licensed lawyer can offer legal advice which is appropriate for your situation