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Civil Liberties 102
Saturday April 15th 1865, the death of a President. President Abraham Lincoln was mortally wounded last night in Ford’s Theatre. Oh hi, welcome back. Bad news from the New York Herald in 1865.
We’re going to talk in episode 102 of Civil Liberties, about the concept of selective incorporation, or how it influenced the Supreme Court’s interpretation of the Bill of Rights. These are absolute must-knows for your AP exam. We’ll talk about the time that 14th amendment, before and after, so you can get a context for it. But we’ll also talk about the cases, and how they have been pulled in by the Supreme Court and bind the state to the Bill of rights. If that’s a little hazy right now, I think we can clear that up in the next ten minutes or so.
President Lincoln was shot in April of 1865, one week after the civil War had ended. A lot of people don’t know it at that time, but the 13th amendment which basically says ‘no slavery’ had been already passed by the congress and had been sent by the states for ratification. So, a lot happening in a very short period of time. The civil war ends, slavery ends. But does that really change the way that people think? Especially in the slave states? If we believe, historians who say that slavery was an economic imperative, nothing much had changed other than the devastation of the war. And as we know, the response to slavery in the south was the beginning of something called the Black Codes.
Interestingly enough, it was also the beginning of a group called the Ku Klux Klan, during the 1860s. you remember the Black Codes from your history class. No intermarriage, only domestic work, and no testimony in a court of law. And may most insidiously, no vagrancy. No vagrancy means no visible means of support. And it was used to implement slavery by another name. If an African-American man was leaving the county or wanted to move on, all it took was the sheriff to find out that they didn’t have enough money. They declared them vagrants and put them into forced labor. These were pretty much the core principles of the Black Codes. This infuriated the North. It infuriated congress and the radical re-constructionist and soon after, by 1868 the 14th amendment had passed as a specific reaction to the Black Codes.
There’s two key provisions to the 14th amendment, that the College Board will expect you to know. First, the due process clause. That is going to binding the states to a certain extent to due process clause of the 5th amendment. Remember, Congress shall make no law? Well maybe now, the 14th amendment is going to force the states to respect that there is due process. The second one, the equal protection clause, that all people have a right to equal protection. I’ll give you some cases in a minute and we’ll see how that plays out.
The response to the 14th amendment and then soon after that, the 15th amendment by the way. In 1870, the 15th amendment says that African-Americans have the right to vote. Some people call them the Civil War amendments, some people call them the Civil Rights amendments. In any case you know that all of these happened within about a four year period of time.
Because the 14th amendment says, if you don’t follow the law, you will lose representation in Congress. There is some real teeth in that law, there’s consequences to that. The response in the South is going to be something that you clearly know. The Jim Crow laws or the Separate but equal laws, and they began to institutionalize something called dejure segregation; segregation by law.
Within 20 years time, you no doubt remember the case of Plessy versus Ferguson which reached the Supreme Court in 1896. How did Homer Plessy, a man who was one eighth African American, how was he discovered to be one eighth African American if he got on a white’s only rail-road car? That puzzled me for a while. And you know the answer, great. If you don’t, you could look it up quickly but let’s just cover that.
Homer Plessey was a man who was chosen to be arrested so the case could be taken to court. And the people who wanted to challenge, separate but equal in court, hired themselves a top lawyer. They thought they were going to win in the United States Supreme Court and have it thrown out. But as you can see, in 1896, Plessy lost his case. Out of the eight judges voting, seven voted to uphold separate but equal. But maybe there is something more interesting in the descent of a man named John Marshal Harlan.
He says that separate but equal is silly. He says it’s worse than that, it’s insidious. He says, “How far are you going to take it? Are you going to have white side walks and black side walks?” He says, "The day will come when this court will look back and overturn this precedent." And of course we know that that day is going to come in the 1950s with Brown versus Board of Education. And we don’t have a lot of time to do this. We’re going to put this in your bonus materials but you know Brown. And you know probably that Thurgood Marshall was the lawyer who argues the Brown case before the Supreme Court. and later became a Supreme Court Justice himself. The first African American Supreme Court Justice. That was the end or the beginning of the end of institutional Jim Crow. Separate but equal is not equal.
And soon after that, Central High School was liberated. A young man named Martin Luther King comes to the front. Rosa Parks is going to integrate buses. You know the heart of the Atlanta case or you should. We’ll put it in your bonus materials, about the desegregation of hotels, public lunch rooms are going to start, all of this is going to happen in the next 20 years.
Remember back to our Filibuster with Strom Thurmond the 24hour and nineteen minute? Well, he won that case in 1957. But finally in 1964, the Civil Rights Act is going to pass. And it’s going to make it a federal crime for example, to discriminate against someone. That’s a violation of their federal civil rights. So for all the cases where a black man is tried in the South with an all white jury, and we know the predictable results. Or a white man’s tried with an all white jury, for crimes against a black man, we know the predictable results. It’s now going to be a federal crime to violate someone’s civil rights. It’s not an answer, it was a step forward.
Also, the federal government is going to get in involved with the voting rights Act of 1965. In which they say, that any county or state, where there’s an under representation in minority voting specifically African American voting, the federal government can come into the state and assert its authority to register people to vote. It’s a whole lot more than that, and you’ve got Title IX with the civil rights, and including women in the 1970s.. And Roe versus Wade and Bucky versus the University of California, which we’re going to get to in your bonus materials, but right now I want to get back to the idea of selective incorporation. That’s where the court brings in the 14th amendment, and puts it upon the states to follow the Bill of Rights.
In the 1920s, is the case of Gitlow versus New York? It’s not so much important that you know specifically what happened in this. It’s about the bad tendency rule in speech, but I don’t think you’ll be asked to explain that. The state of New York has to respect the free speech provision of the first amendment of the constitution. It is the first example in the 20th century of selective incorporation. Then, things follow fairly quickly after that.
In the early 1930s, in a case called Near versus Minnesota. The state of Minnesota had a law which said that libellous material could not be printed. And the federal government said that even if it’s libel, there is no prior restrain to that. And they overturned the Minnesota law. They brought the first amendment, freedom of the press incorporated into the constitution.
Soon after that, another first amendment case, De jonge versus Oregon. Do people have the right to peaceably assemble in Oregon? Well, yes they do. The state is not allowed to have a rule that supersedes the Bill of Rights. You’ve got this. Let’s just go through all of these right now.
You probably know the Mapp versus Ohio case. You must know this case. It’s about an unwarranted search without probably cause, and is something that coined the exclusionary rule. That if they take evidence, police or authorities take evidence, and they don’t have probable cause, that evidence can and will be excluded. You’ve all seen television, you all know the rights that you have. You have the right to remain silent. You have the right to an attorney, that sort of thing. Miranda Versus Arizona, the right to remain silent; the Fifth Amendment, to take the fifth. And of course you’ve got Clarence Earl Gideon.
So Gideon in fact did get his new trial. He got himself a good lawyer, and lo and behold, Gideon was found not guilty. And from that day forward, not only in Florida, but everywhere in America, if you’re accused of a crime, you have the right to an Attorney. Those are the precedent setting cases.
In the 1970s, the Supreme Court of the United States said that the states must follow the Bill of Rights with regard to the death penalty. Is it cruel and unusual punishment? Is electrocution cruel and unusual punishment? Is it unfair or denial of equal protection, if a black man in Georgia is seven times more likely to get the death penalty for killing a white, than a white is for killing a black? Is that a denial of equal protection? The court threw out the death penalty for a period of about four years. This is the first of two cases. The other is Greg versus Georgia. They're called the Georgia death penalty cases. But they must follow what the federal government wants.
Is it unfair if a 16 year old is put to death? If a 14 year old is put to death? If a person is mentally retarded, whatever the federal guideline is, is incorporated into the states now. And then finally, we’ll finish with an example from the year 2008.
In the latest term of the Supreme Court, the Supreme Court said that Washington DC‘s ban on private ownership of hand guns and weapons is unconstitutional. Therefore, they have interpreted the second amendment to say that it is your constitutional right to have a weapon or so it seems. This is the first court challenge of many. But, as we can see, selective incorporation means, that because of the 14th amendment, because the states are bound to follow the due process clause of the 5th amendment, that they’re now going to pull in the first amendment, the 4th amendment, the 5th amendment, the 6th amendment and the 8th amendment to the constitution.
So in closing, what do you absolutely need to know for your AP exam? Well you need to know these cases. You need to know the Civil Rights or Civil War amendments 13, 14 and 15. The heart of the 14th amendment; due process, binding the states to the due process clause of the 5th amendment, equal protection under law. You’re also going to want to know these specific cases. Check them out in your bonus materials. When you’ve done that, you should be ready to go. So we’ll see you in episode 15, where we get ready to take your AP government exam.