Schultz D. Encyclopedia of the United States Constitution

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jurisprudence under Section 5 of the Fourteenth

Amendment.

For several decades prior to Employment Divi-

sion v. Smith, the Supreme Court applied strict

scrutiny to all laws that had the effect of burdening

a religious practice. In Smith, the Court reversed

course, holding that neutral and generally applica-

ble laws that burden particular religious practices

need not be justified by a compelling gov-

ernmental interest. A bipartisan Congress

responded to Smith by passing RFRA, which rees-

tablished the strict scrutiny standard. Speciﬁ cally,

RFRA prohibited government from “substantially

burdening” a person’s exercise of religion unless

the government could show that the restriction

is in furtherance of a compelling governmental

interest and that it is the least restrictive means of

furthering that interest.

At the same time that Congress was debat-

ing RFRA, the city of Boerne, in Texas, enacted

an ordinance creating historical districts within

the town. When a church applied for a permit to

enlarge its building, the city denied the permit

because it was within one of the newly created his-

torical districts. The church then challenged the

permit denial, arguing that it violated RFRA.

The Supreme Court, in an opinion by Justice

Anthony M. Kennedy, held that RFRA was

unconstitutional as it applied to state governments

because it was not a proper exercise of Congress’s

power under Section 5 of the Fourteenth Amend-

ment. Although Section 5 delegates to Congress

the power to enforce certain rights, its power is

limited to enforcing the constitutional rights as

recognized by the Supreme Court. Congress

may not “decree the substance of the Fourteenth

Amendment’s restrictions on the States.” In one

often-quoted line from Justice Kennedy’s opinion,

he states that “Congress does not enforce a consti-

tutional right by changing what the right is.”

The Court announced that it would apply a new

test to Section 5 legislation, requiring that there

be a “congruence and proportionality between the

injury to be prevented or remedied and the means

adopted to that end.” The Court held that RFRA

did not survive this congruence and proportion-

ality test because it attempted to substantively

change the scope of constitutional protections for

religious freedom.

In their dissent, Justices Sandra Day

O’Connor and Stephen G. Breyer directly

challenged the Court’s holding in Smith. They

argued that if the Court would only correct its

holding in Smith, it would put “our First Amend-

ment jurisprudence back on course” and be in

accord with the “legitimate concerns of a majority

of Congress who believed that Smith improperly

restricted religious liberty.”

Justice John Paul Stevens concurred, argu-

ing that RFRA is a law “respecting an estab-

lishment of religion” and therefore violates the

establishment clause. In his view, RFRA pro-

vides the religiously devout with a legal weapon

that no atheist or agnostic can obtain. This gov-

ernmental preference for religion, as opposed to

irreligion, is forbidden by the First Amendment.

For more information: Berg, Thomas C. Reli-

gious Freedom After Boerne. NEXUS: A Journal

of Opinion. (1997); 91–102; Paisner, Michael.

“Boerne Supremacy: Congressional Response to

City of Boerne v. Flores and the Scope of Con-

gress’s Article I Powers.” Columbia Law Review

105 (2005): 537–582.

—Winston E. Calvert

City of Chicago v. Morales 527 U.S. 41

(1999)

In City of Chicago v. Morales, the Supreme Court

declared unconstitutional a city law that made

it illegal for gang members to congregate. The

Supreme Court determined from the facts that

the First, Fourth, Eighth, and Fourteenth

Amendments were either directly violated or

indirectly contradicted by the Chicago city ordi-

nance that was the underlying tenet of the case.

At issue in this case was whether or not the city

ordinance that forbade gang members or their

associates from loitering after responding police

ofﬁ cers advised them to disperse and move away

from the immediate area violates their constitu-

tional rights. The Illinois courts held that the vaga-

ries in the ordinance allowed for too much power

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on the police’s part in making determinations as to

who was, in fact, practicing his or her right to con-

gregation and who was engaged in discussion of

ill refute or criminal conspiracy. If the police ofﬁ -

cer believed the group to be part of a gang, then

the ofﬁ cer could direct them to leave, and if they

did not comply with the order, the ofﬁ cer could

then arrest the persons. The police department

in Chicago did establish some restrictions on the

ofﬁ cers’ discretion to arrest by deﬁ ning the poten-

tial offender’s behavior. Adding to this restriction,

the respective areas where this ordinance could

be enforced further restricted the ability for the

ofﬁ cers to operate at whim.

The Illinois Supreme Court decided that the

ordinance violated the due process clause of

the Constitution in that the vagaries associated

with the law placed an arbitrary burden upon the

freedoms of the person. On appeal to the U.S.

Supreme Court, Justice John Paul Stevens

declared the law unconstitutional. He stated that

the definition of gang member was vague and

that the type of practice or activity that the law

sought to prohibit was also unclear, thereby fail-

ing to give individuals sufﬁ cient notice regarding

what the law required. Finally, the Court stated

that the law gave law-enforcement officials too

much discretion to stop and order individuals to

move. Overall, City of Chicago v. Morales is an

important case that limits the government’s ability

to regulate gangs and loitering.

For more information: Cassack, Lance, and

Milton Heumann. Good Cop, Bad Cop: Racial

Proﬁ ling and Competing Views of Justice. New

York: Peter Lang, 2003; Langran, Robert W. The

Supreme Court: A Concise History. New York:

Peter Lang, 2004.

—Ernest Gomez

City of Cuyahoga Falls, Ohio, et al. v.

Buckeye Community Hope Foundation,

et al.

538 U.S. 188 (2003)

In City of Cuyahoga Falls, Ohio, et al. v. Buck-

eye Community Hope Foundation, et al., the

Supreme Court ruled that allowing citizens to vote

on whether a low-income housing project could be

built in a city did not violate the equal protec-

tion clause of the Fourteenth Amendment.

The city of Cuyahoga Falls, in Ohio, passed

a city ordinance allowing Buckeye Community

Hope Foundation, a nonprofit organization, to

build a low-income housing development. Some

citizens of Cuyahoga Falls organized and drew up

and presented a petition to the city requesting that

the ordinance be repealed or the matter sent to

the voters in the form of a referendum (a process

of referring a public issue to voters for approval).

The foundation ﬁ led a suit claiming that the

city violated the equal protection clause and due

process clause of the Fourteenth Amendment

to the Constitution, as well as the Fair Housing

Act, when the city submitted the foundation’s site

plan to the voters for approval. The Ohio Supreme

Court, applying Ohio’s constitution to the case,

declared the referendum invalid. In the mean-

time, district court found for the city, and the case

was appealed to the U.S. Court of Appeals for the

Sixth Circuit. The appeals court reversed the deci-

sion of the lower court noting that the foundation

had made a valid claim under the Fair Housing

Act and violated due process.

The case was appealed to the Supreme Court.

The question before the Court was whether the

decision by the court of appeals was correct. Did

the Buckeye Community Hope Foundation have a

valid claim against the city of Cuyahoga Falls? In

a 9-0 decision, delivered by Justice Sandra Day

O’Connor, the Court concluded that the court of

appeals erred in its decision and the foundation’s

claims were not valid. The Court stated that lack-

ing clear evidence of discriminatory intent, the

vote on housing was not unconstitutional.

City of Cuyahoga Falls, Ohio, et al. v. Buckeye

Community Hope Foundation, et al. is an impor-

tant case clarifying what constitutes discrimina-

tion and also what options cities have when it

comes to placing housing for individuals who may

be unpopular.

For more information: Bonelli, David M. “If

You Build It ‘They’ Will Come: Intentional Dis-

crimination and Disparate Impact Theory in

City of Cuyahoga Falls, Ohio, et al. v. Buckeye Community Hope Foundation, et al. 123

xviii+446_EofUSConsti-v1.indd 123 3/12/09 3:04:15 PM

Buckeye Community Hope Foundation v. City of

Cuyahoga Falls.” Hamline Law Review 26, no. 3

(Spring 2003): 631–678.

—Dan Krejci

City of Ladue v. Gilleo 512 U.S. 43 (1994)

In Ladue v. Gilleo, the Supreme Court held that

the tradition of individuals expressing their views

by placing signs on their yards or in their windows

has a special place in American culture and law.

The Court invalidated an ordinance adopted

by the city of Ladue, in Missouri, that prohibited

homeowners from displaying signs on their prop-

erty. The Court termed yard signs “a venerable

means of communication that is both unique and

important.” Ladue resident Margaret P. Gilleo

placed a two-by-three foot sign in her yard printed

with the words “Say No to War in the Persian

Gulf, Call Congress Now.” The sign disappeared;

she replaced it, and that one was knocked down.

When Gilleo reported these incidents to the police,

they told her that her signs were illegal. She then

placed an 8.5-by-11 inch sign in her second ﬂ oor

window that read “For Peace in the Gulf.” The

city responded by replacing its ordinance with a

new one that speciﬁ cally prohibited window signs.

Gilleo sued under the First Amendment.

In striking down this ban on signs placed by

residents on their own property, the Supreme

Court emphasized the unique role displaying

signs at one’s residence serves in the expression

of ideas. The Court held that “[a] special respect

for individual liberty in the home has long been

part of our culture and our law.” The Court noted

that “[d]isplaying a sign from one’s own residence

often carries a message quite distinct from placing

the same sign somewhere else.” It gave examples

of a peace sign on the lawn of a retired general or

decorated war veteran or a sign espousing social-

ism on the lawn of a stately mansion provoking dif-

ferent reactions or carrying different implications

than similar signs placed elsewhere. The Court

also noted that yard signs are “often intend[ed] to

reach neighbors, an audience that could not be

reached nearly as well by other means.” Addition-

ally, the Court held that yard signs convey infor-

mation about the speaker and quoted Aristotle to

support its view that the identity of the speaker

can be an important aspect in the attempt to per-

suade. In short, there was no satisfactory alterna-

tive for yard signs.

The city ordinance spelled out what the city

thought were its interests in regulating signs,

including its belief that signs “would create ugli-

ness, visual blight and clutter,” diminish property

values, and “may cause safety and trafﬁ c hazards.”

Though the Court noted that residents had strong

incentives not to diminish their property values

with “visual clutter,” the Court accepted the valid-

ity of regulating signs, just as cities may, within

reasonable bounds, regulate noise. But totally

foreclosing this mode of communication to politi-

cal, religious, or personal messages violated the

First Amendment.

The Court’s ruling was consistent with its rul-

ing 18 years earlier that struck down a ban on

house “for sale” signs in residential areas (Lin-

mark Associates, Inc. v. Willingboro, 431 U.S. 85

[1977]). That ordinance by a New Jersey city had

been defended as necessary to maintain stable,

integrated neighborhoods. The Court held that

regardless of the importance of that or any other

goal, the city violated the First Amendment by

“achieving its goal by restricting the free ﬂ ow of

truthful information.”

For more information: Langran, Robert W. The

Supreme Court: A Concise History. New York:

Peter Lang, 2004; Volokh, Eugene. The First

Amendment: Problems, Cases and Policy Argu-

ments. New York: Foundation Press, 2001.

—Neil Bradley

City of Los Angeles v. Alameda Books, Inc.

535 U.S. 425 (2002)

In City of Los Angeles v. Alameda Books, Inc., the

Supreme Court upheld the use of a study on crime

and the adult entertainment industry to support

a zoning ordinance that limited the location and

placement of these types of establishments within

the city. This case is important because it rejected

First Amendment arguments in favor of giving

124 City of Ladue v. Gilleo

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governments more authority to regulate the sec-

ondary effects of adult entertainment.

In 1977, in an effort to curb crime, Los Angeles

conducted a study in order to identify the entities

or factors that affect crime rates. This 1977 study

demonstrated that there is an apparent associa-

tion between high crime rates and the presence of

adult entertainment establishments. Based on this

study, the Los Angeles city government enacted

a municipal code (Section 12.70 (C) [1978]). This

code prohibited adult entertainment enterprises

from operating within 1,000 feet of each other or

within 500 feet of “a religious institution, school,

or public park.” Los Angeles failed to note a weak-

ness in the ordinance, that more than one estab-

lishment could occupy the same structure. This

oversight was amended in 1983 to include “more

than one adult entertainment business in the same

building.”

Two adult entertainment establishments,

Alameda Books, Inc., and Highland Books, Inc.,

sued the city of Los Angeles claiming that the

ordinance violated their First Amendment right

to free speech. Their claim was that the ordinance

was not content neutral. The Court had provided

a deﬁ nition of content neutral in Ward v. Rock

Against Racism, 491 U.S. 781 (1989):

The principal inquiry in determining content

neutrality, in speech cases generally and in

time, place, or manner cases in particular, is

whether the government has adopted a regula-

tion of speech because of disagreement with the

message it conveys. The government’s purpose

is the controlling consideration. A regulation

that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an

incidental effect on some speakers or messages

but not others.

The district court sided with the plaintiffs, noting

that the 1977 study failed to provide a reasonable

connection between adult entertainment estab-

lishments and crime rates. The court of appeals

affirmed the district court ruling, stating that

the city failed to provide sufﬁ cient evidence that

“its regulation of multiple use establishments was

designed to serve its substantial interest in reduc-

ing crime.”

The city of Los Angeles appealed the deci-

sion, and the Court decided in favor of the city

of Los Angeles. The question before the Court

was whether the city of Los Angeles could use a

study it conducted to “demonstrate whether an

ordinance serves a substantial government inter-

est.” In a plurality decision (5-4) written by Justice

Sandra Day O’Connor, the Court determined

that the city of Los Angeles, “may reasonably rely

on a study it conducted years before enacting the

present version of section 12.70 (C) to demon-

strate that its ban on multiple-use adult establish-

ments serves its interest in reducing crime.” In a

concurring opinion, Justice Anthony M. Ken-

nedy concluded “that Los Angeles may impose its

regulation in the exercise of the zoning authority,

and that the city is not, at least, to be foreclosed by

summary judgment.”

For more information: Baradaran-Robison,

Shima. “Viewpoint Neutral Zoning of Adult

Entertainment Businesses.” Hastings Constitu-

tional Law Quarterly 31, no. 4 (Summer 2004):

447–497; Jelsema, Mindi M. “Zoning Adult Busi-

nesses.” Saint Louis University Law Journal 47,

no. 4 (Summer 2003): 117–150; Prygoski, Philip

J. “Content Neutrality and Levels of Scrutiny in

First Amendment Zoning Cases.” Whittier Law

Review 25, no. 1 (Fall 2003): 79–111.

—Dan Krejci

City of Richmond v. J. A. Croson Company

488 U.S. 494 (1989)

In City of Richmond v. J. A. Croson Co., the

Supreme Court ruled that a city program that

awarded a ﬁ xed percentage on all city construction

contracts to minority business enterprises (MBEs)

was a violation of the Fourteenth Amendment

equal protection clause. The signiﬁ cance of

this decision was to call into question the author-

ity of the federal, state, and local governments to

create programs to assist minority-owned busi-

nesses to overcome past discrimination in secur-

ing contracts to perform work.

City of Richmond v. J. A. Croson Company 125

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Even after African Americans were emanci-

pated from slavery and given equal rights to those

of whites under the Thirteenth, Fourteenth,

and Fifteenth Amendments, they continued

to face discrimination in numerous ways, includ-

ing in the realm of employment. Blacks, for exam-

ple, faced many difﬁ culties in forming their own

businesses and in being successful bidders in the

awarding of government contracts to perform ser-

vices, such as for construction projects. While laws

were adopted in the 1960s to end discrimination,

such as the Civil Rights Act of 1964, some

contended that the government needed to provide

additional support to help blacks overcome histor-

ical discrimination. Among those developed were

affirmative action and MBEs.

MBE programs were developed at the federal,

state, and local levels during the 1960s. Govern-

ments, acting in their capacity as employers,

would arrange to set aside a certain percentage or

dollar amount of all their contracts to companies

with majority ownership of minorities (MBEs) or

women (WBEs). However, some contended that

these programs were illegal, citing a violation of

the Fourteenth Amendment’s equal protection

clause.

In F

ULLILOVE V. KLUTZNICK, 448 U.S. 448 (1980),

the Supreme Court upheld an MBE program in

the 1977 Public Works Employment Act. Here,

the Court had ruled that a 10 percent set-aside

for MBEs was not unconstitutional; however, the

ruling was a 6-3 decision. Subsequently, several

justices, including Chief Justice Warren Ear l

Burger, departed, and as a result of appoint-

ments by President Ronald Reagan, the Court

shifted right. The Rehnquist Court was less

supportive of affirmative action and MBE pro-

grams and decided to hear the Croson case.

The city of Richmond, in order to overcome

historical discrimination against blacks and to

encourage more minority businesses, enacted a

law requiring that at least 30 percent of the dollar

value of all city-awarded construction contracts

be awarded to businesses owned by minorities.

“Owned by minorities” meant that at least 51 per-

cent of the business had to be controlled by people

of color. The program was not limited to deﬁ n-

ing MBEs as blacks but also included those who

were Spanish-speaking, Asian, Indian, Eskimo, or

Aleut. When the law was adopted, its supporters

noted that while 50 percent of the city’s popula-

tion was African American, less than 1 percent of

the contracts awarded by Richmond in the previ-

ous ﬁ ve years had been awarded to blacks. J. A.

Croson, Inc., was a heating and plumbing contrac-

tor that objected to the MBE set-aside program.

The company challenged it in court, and after it

had prevailed in the lower courts, the Supreme

Court agreed to hear the case.

Writing for a divided majority in a 6-3 opinion,

Justice Sandra Day O’Connor ruled that the

Richmond MBE program violated the Fourteenth

Amendment’s equal protection clause. The basis

of her argument was that it was not narrowly tai-

lored. She ﬁ rst contended that because there was

no documented history of discrimination against

Spanish-speaking, Asian, Indian, Eskimo, or Aleut

individuals, their inclusion in the MBE program

was improper. Second, O’Connor noted that there

was no documentation that supported evidence

of discrimination in the construction industry

in the city. Third, given that Richmond was half

African American and that a majority of its city

council was black, these facts boded against the

idea that individuals of this race were a minor-

ity lacking representation and in need of special

protection. Fourth, the Court also noted that the

MBE program, especially with the 30 percent set-

aside, appeared to be more than a remedial mea-

sure meant to overcome past discrimination. If

the goal of the city was to be remedial, O’Connor

suggested that other race-neutral programs were

available. Finally, Justice O’Connor asserted that

the Richmond program denied some the ability

to compete for contracts based on their race and

therefore, under a strict scrutiny analysis,

such a program was unconstitutional. In concur-

rence, Justice Antonin Gregory Scalia ruled

that race-based programs such as MBEs were

unconstitutional under strict scrutiny.

In dissent, Justice Thurgood Marshall con-

tended that the use of race for remedial purposes

should not be examined under strict scrutiny but

under a more relaxed standard. Moreover, he

126 City of Richmond v. J. A. Croson Company

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chided the majority for its claims that there was

no history of discrimination in Richmond, noting

that at one time during the Civil War, it was the

capital of the Confederacy.

Critics of MBEs, afﬁ rmative action, and race-

based programs thought Croson was the end of

set-aside programs; however, one year later, in

ETRO BROADCASTING, INC. V. FCC, 497 U.S. 547

(1990), Justice William J. Brennan, Jr., wrote

a 5-4 opinion upholding the constitutionality of

a Federal Communications Commission policy

that considered race when awarding radio station

licenses. It was not until A

DARAND CONTRACTORS,

INC. V. PEÑA, 515 U.S. 200 (1995), that the Court

appeared to rule ﬁ nally that MBE-type programs

were unconstitutional because of their use of race.

For more information: Drake, W. Avon, and

Robert D. Holsworth. Afﬁ rmative Action and the

Stalled Quest for Black Progress. Urbana: Univer-

sity of Illinois Press, 1996.

—Martin J. Sweet and David Schultz

civil liberties

Civil liberty is the right of an individual to be free

of unjustiﬁ ed government interference with his or

her person, property, beliefs, or decisions. In the

United States, the Bill of Rights sets limits on

the sorts of government interference that can be

legally justiﬁ ed. Understanding what those lim-

its are, why they were put in place, and how they

compare to rights of citizens in other countries is

central to understanding American civil liberties.

Those who drafted the nation’s foundational

documents were profoundly influenced by the

philosophy of the Enlightenment, especially the

writings of John Locke. They believed that the

state had a moral obligation to respect individual

autonomy, deﬁ ned as the right of individuals to set

and pursue their own moral ends. Accordingly,

our constitutional system begins with the premise

that government is not entitled to interfere with

an individual’s behaviors unless that individual is

harming the person or property of a nonconsent-

ing other. This is sometimes called the “libertar-

ian principle.”

The U.S. Bill of Rights protects fundamental

civil liberties: freedom of speech and the press,

freedom to assemble and “petition the government

for redress of grievances” (that is, dissent), religious

liberty, freedom from unreasonable searches and

seizures, and a variety of other procedural pro-

tections that together constitute basic American

due process guarantees. More recently, equal

protection of the laws has been added as a fun-

damental right.

Civil liberties (and human rights generally) are

based on the beliefs that individuals have inher-

ent dignity and status simply by virtue of being

human and that government has the obligation

to recognize and respect that personhood. In the

U.S. legal system, unlike some other countries,

civil liberties are individual in nature. The Ameri-

can constitutional system does not recognize

group rights; ethnic and other minorities do not

have rights separate and apart from those enjoyed

by individual members of the group.

At their base, all civil liberties disputes revolve

around ﬁ nding the proper balance between the

power of the state and the right of individuals to

live as they choose. This is primarily a procedural

issue: Who shall decide? Who, in other words, has

the authority to make any particular decision, the

government or the individual?

Citizens frequently fail to recognize that the

essential characteristic of our constitutionally

protected liberties is this restraint on the gov-

ernment’s power to decide certain matters, and

they therefore fail to distinguish between the act

of limiting government’s power and the endorse-

ment of a particular outcome. When a court

refuses to allow an agency of government to cen-

sor a particular book, for example, the court is not

endorsing the content of that book; it is upholding

the principle that citizens have a right to choose

their own reading material, free of government

interference. When courts refuse to allow offi-

cial prayer in public schools, it is not because the

judges are hostile to religion; it is because parents

have a right to control the religious upbringing

of their children, free of government interfer-

ence. The emphasis is upon how decisions are

made rather than what decisions are made. In the

civil liberties 127

xviii+446_EofUSConsti-v1.indd 127 3/12/09 3:04:16 PM

American legal system, good ends cannot be used

to justify improper means.

The procedural nature of the U.S. constitutional

system is often criticized by communitarians who

believe that citizens should be more “embedded”

in a shared moral framework. The negative nature

of U.S. civil liberties, where liberty is envisioned

as freedom from government control, is also criti-

cized by those who favor the addition of so-called

positive rights, or entitlements, to the American

conception of fundamental rights, much as

is the case with the United Nations Declaration

of Human Rights and many European constitu-

tions that give citizens a government-insured right

to adequate housing, medical care, or education.

Whatever the merits or ﬂ aws of those arguments,

the U.S. constitutional structure was built upon

a commitment to individual choice and respect

for the integrity and inviolability of the individual

conscience. Partially as a result, America has one

of the most individualistic cultures in the world,

and its legal system both reﬂ ects and reinforces

that individualism.

It is instructive to note that there was no dis-

agreement between the Federalists and Anti-Fed-

eralists about the proper role of government and

the nature of the so-called inalienable rights, or

civil liberties, that each citizen was entitled to

enjoy. Their great debate was not a dispute about

the importance of guaranteeing individuals free-

dom from government interference; rather, these

founders disagreed about the proper method of

insuring that personal freedom. Anti-Federal-

ist critics of the new constitution wanted a Bill

of Rights, specifying the liberties that would be

insulated against ofﬁ cial action. Federalists such

as Alexander Hamilton, on the other hand,

argued that the new national government was a

creature of “delegated powers” only and that it

therefore lacked any authority to invade personal

liberties. Hamilton worried about the dangers of

“enumerating” or listing protected rights. He and

others feared that the existence of a written Bill of

Rights would lead future government ofﬁ cials to

argue that if a right was not speciﬁ cally listed, it

was not protected. The compromise between these

two arguments was the language of the Ninth

and Tenth Amendments, sometimes called the

“rights and powers” amendments. Read together,

they provide that enumeration of certain rights is

not to be construed as denial of others, and any

powers not speciﬁ cally given to the federal gov-

ernment remain with the states or the people.

Originally, the Bill of Rights restrained only

the federal government. Many states continued to

have “established” religions until the early 1800s

and continued to enforce a variety of other laws

that were inconsistent with civil liberty. It was

not until after the passage of the Fourteenth

Amendment, in the wake of the Civil War, that

the Bill of Rights would be “incorporated” into

the Fourteenth and made binding on all levels of

government.

Civil liberties are not protected against private

infringements. The Bill of Rights limits government

only; unless there is “state action” (that is, action by

a unit or agency of government), there is no viola-

tion of civil liberties. Civil rights, on the other

hand, are rights to be free of discrimination by pri-

vate parties. Civil rights are creatures of statute, not

products of the Constitution. The ﬁ rst federal law

establishing a legally enforceable right to be free of

private discrimination in employment, housing, or

education was the Civil Rights Act of 1964.

When the Constitution was ﬁ rst drafted, civil

liberties were enjoyed by free, white male property

owners. Over the years, despite some “detours,”

the American idea of liberty has expanded. Today,

women and racial and ethnic minorities are

entitled to the same fundamental rights as white

males, and since the 1990s, great strides toward

equality have been made by members of other

minorities, notably gays and lesbians.

For more information: Amar, Akhil Reed. The

Bill of Rights: Creation and Reconstruction. New

Haven, Conn.: Yale University Press, 2000; Ken-

nedy, Sheila Suess. What’s a Nice Republican

Girl Like Me Doing at the ACLU. New York:

Prometheus Books, 1992; Kersch, Ken I. Con-

structing Civil Liberties: Discontinuities in the

Development of American Constitutional Law.

New York: Cambridge University Press, 2004.

—Sheila Suess Kennedy

128 civil liberties

xviii+446_EofUSConsti-v1.indd 128 3/12/09 3:04:17 PM

civil rights

Civil rights refer to protections against discrimi-

nation by the government and private parties. The

basis of most civil rights laws is found in the Con-

stitution and under federal law, although many

states and local governments also have enacted

their own antidiscrimination provisions.

Civil rights laws stand in contrast to civil lib-

erties. Civil liberties, which generally include

the ﬁ rst eight amendments to the Constitution,

include the rights to free speech and freedom

of the press and against self-incrimination and

cruel and unusual punishment. These are

rights citizens have against the government. Civil

rights generally are rights against discrimination

by the government or nongovernmental actors,

and in some cases they may require government

action. While, in general, civil rights laws in the

United States have been aimed toward protecting

African Americans from discrimination, women,

other people of color, and, increasingly, gays and

lesbians have been and are the recipients of civil

rights protection.

Prior to their emancipation from slavery, Afri-

can Americans lacked basic civil rights. These

rights included the right to vote, to secure

housing and employment, to travel freely inter- or

intrastate, or to sign and enter into contracts. Once

African Americans were freed from slavery with

the adoption of the Thirteenth Amendment

after the Civil War, the Reconstruction Congress

passed the 1866 Civil Rights Act in order to pro-

tect the rights of the freed slaves. This act barred

discrimination against blacks by the government

or by private parties in many areas, such as in

employment. Subsequently, as a result of some

concern in Congress that the legislature lacked

the authority to prohibit private discrimination

as described in the 1866 Civil Rights Act, Con-

gress adopted the Fourteenth and Fifteenth

Amendments in 1868 and 1869, respectively. In

adopting these two amendments, Sections 5 and

2 each stated that “Congress shall have power to

enforce this article by appropriate legislation.”

These enforcement provisions appeared to grant

Congress the authority it needed to adopt civil

rights legislation.

But in the C

IVIL RIGHTS CASES, 109 U.S. 3

(1883), the Supreme Court ruled that despite the

enforcement language of the Fourteenth Amend-

ment, Congress lacked the constitutional authority

to ban private discrimination. After Reconstruc-

tion ended in 1876 with the removal of federal

troops from the South, discrimination reemerged

with the adoption of Jim Crow and other laws that

denied African Americans the right to vote or oth-

erwise permitted both the government and pri-

vate parties to deny them the same privileges that

whites had. This new discrimination can be best

seen in P

LESSY V. FERGUSON, 163 U.S. 537 (1896),

where the Supreme Court upheld laws that man-

dated separate provisions for blacks and whites.

Here, the Court stated that separate but equal

facilities for members of different races were per-

mitted. As result of Plessy, African Americans

were segregated into separate school districts and

otherwise were denied equal treatment when it

came to housing, employment, and a host of other

actions.

In an effort to overturn Plessy and the separate

but equal doctrine, the National Association for

the Advancement of Colored People (NAACP) was

formed in 1909. In a series of court cases over the

next ﬁ ve decades, the NAACP challenged Plessy.

Representing the NAACP, future Supreme Court

justice Thurgood Marshall successfully argued for

the overturning of the separate but equal doctrine

in B

ROWN V. BOARD OF EDUCATION OF TOPEKA, 347

U.S. 483 (1954). After Brown, and as a result of

civil rights protests across the country that were

led by Martin Luther King, Jr., and acts of civil

disobedience by individuals such as Rosa Parks,

Congress passed the 1957 Civil Rights Act, which

aimed at strengthening the voting rights of Afri-

can Americans. However, it was the passage of

the Civil Rights Act of 1964, especially Title

VII, that dramatically enlarged civil rights. This

act, like its 1866 predecessor, barred private

discrimination, but it also extended the protec-

tion to include women and other people of color.

Concerned that the act would meet the same fate

as the 1866 act, Congress based its authority to

enact this legislation both on Section 5 of the

Fourteenth Amendment and on the commerce

civil rights 129

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clause. In HEART OF ATLANTA MOTEL V. UNITED

TATES, 379 U.S. 241 (1964), the Supreme Court

upheld it under both clauses.

After the passage of the 1964 Civil Rights Act,

Congress adopted the Voting Rights Act of

1965 in order to strengthen the ability of African

Americans to register and vote. Adoption of the

Twenty-fourth Amendment in 1964, which

outlaws poll taxes, and numerous Supreme Court

decisions after Brown all helped to strengthen

civil rights in America. Since the 1960s, Congress

has reauthorized the Voting Rights Act several

times and has adopted additional civil rights acts.

Despite the passage of these laws, critics argue

that women, African Americans, people of color,

and gays, lesbians, and transsexuals still face dis-

crimination. They point to further need either for

more antidiscrimination laws or for more aggres-

sive enforcement by the Equal Employment

Opportunity Commission (EEOC) or other gov-

ernment agencies.

For more information: Kluger, Richard. Simple

Justice: The History of Brown v. Board of Educa-

tion and Black America’s Struggle for Equality.

New York: Vintage, 2004; Woodward, C. Vann.

The Strange Career of Jim Crow. New York:

Oxford University Press, 2001.

—David Schultz

Civil Rights Act of 1964

The Civil Rights Act of 1964 was the most far-

reaching law of its kind since Reconstruction. At

the heart of this landmark legislation is the section

guaranteeing equal access to public accommoda-

tions for all.

Prior to this, there were civil rights bills

passed in 1957 and 1960. The Civil Rights Act

of 1957 had set up a commission with power to

investigate violations of racial discrimination and

authorized suits to protect voting rights. The 1960

act had emphasized protection of voting rights

and authorized judges to appoint referees to help

African Americans register and vote. While the

two acts were the ﬁ rst time since Reconstruction

that Congress had attempted to protect the rights

of black people, they gave relatively little aid to the

progress in civil rights.

In June 1963, President John F. Kennedy

announced he would ask Congress for legislation

to provide the kind of equal treatment that “we

would want ourselves.” He stated that the measure

would promote civil rights on two broad fronts,

including banning discrimination in public accom-

modations. Black leaders immediately hailed the

president’s speech as a “Second Emancipation

Proclamation.” This announcement led to a mas-

sive march on Washington, D.C., in August 1963

supporting legislation, which may be best known

for Martin Luther King, Jr.’s “I Have a Dream”

speech. Then, on November 22, 1963, Kennedy

was assassinated, and Lyndon B. Johnson became

president. Few who supported the legislation had

much hope for Johnson, as he was a southerner,

and it was presumed he would be pursuing the

Democratic Party’s nomination in 1964.

President Johnson, in his speech to Congress

ﬁ ve days after the assassination, singled out the

civil rights bill and made it clear that he was deter-

mined to see this become law. Passage of this bill

required all of Johnson’s abilities, which were

plentiful, as demonstrated when he was a leader

in Congress and secured passage of tax cuts and

legislation regarding the war on poverty. Johnson

had several reasons to support this cause. Growing

up in Texas, he had seen ﬁ rsthand the viciousness

of racial discrimination and empathized with the

victims. Furthermore, as a congressman he had

battled to ensure that federal agricultural pro-

grams treated blacks and whites equally.

Johnson recognized a great effort would be

needed if the bill was to become law. In February

1964, the bill passed the House of Representa-

tives 290-130. The White House knew that the

southern senators would try to ﬁ libuster the bill

to death. To the president, the key to getting the

67 votes needed for cloture (to end the ﬁ libuster)

would be Senate Minority Leader Everett Dirk-

sen, a Republican from Illinois. To lobby senators,

Johnson used liberal labor union leaders, civil

rights activists, church leaders, and Vice Presi-

dent Hubert H. Humphrey. The filibuster did

take place and lasted three months, during which

130 Civil Rights Act of 1964

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time opponents of the bill grew more emphatic in

their opposition. The cloture vote was 71-29, and

the vote on the actual bill was 73-27. President

Johnson signed the bill into law on July 2, 1964.

The bill contained several strong provisions.

It banned racial discrimination in privately run

accommodations for the public, such as theaters,

movie houses, restaurants, gas stations, and hotels.

The U.S. attorney general was authorized to elimi-

nate de jure racial segregation in public schools,

hospitals, playgrounds, libraries, museums, and

other public places. It stated that schools, as well

as other federally assisted institutions, would face

loss of federal funds if they continued to discrimi-

nate. Finally, it authorized the attorney general

to bring suits on behalf of parents complaining of

discrimination in the schools and declared that

the government would assume their legal costs.

Within six months of the president signing the

bill into law, the Supreme Court heard challenges

seeking to prevent enforcement of the public accom-

modations section of Title II. In H

EART OF ATLANTA

OTEL V. U.S., 379 U.S. 241 (1964), the Court unan-

imously rejected the claim that a motel located in a

city did not fall within the meaning of interstate

commerce. In K

ATZENBACH V. MCCLUNG, 379 U.S.

294 (1964), the Court unanimously sustained the

law as it applied to restaurants.

The Civil Rights Act of 1964 had a signifi-

cant effect in many areas but was lacking in vot-

ing rights. Thus, Congress produced the Voting

Rights Act of 1965. In areas that the 1964 Civil

Rights Act did cover, many employers and unions

were able to evade portions regarding job discrim-

ination. Particularly in housing and schooling, de

facto racial discrimination remained widespread

in the North. Many school districts, primarily in

the deep South, continued to employ deceptions

of one sort or another to circumvent desegre-

gation in public education. Finally, the law did

President Lyndon Johnson signs the Civil Rights Act of 1964, as Martin Luther King, Jr., looks on. (Johnson Library)

Civil Rights Act of 1964 131

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