Chapter Overview

The Constitution protects the acquisition and retention of citizenship. It protects the basic liberties of citizens as well as aliens. The Constitution protects our property from arbitrary governmental interference, although debates about which interferences are reasonable and which are arbitrary are not easily settled.

The Constitution imposes limits not only on the procedures the government must follow but also on the ends it may pursue. Some actions are out of bounds no matter what procedures are followed. Legislatures have the primary role in determining what is reasonable and what is unreasonable. However, the Supreme Court continues to exercise its own independent and final review of legislative determinations of reasonableness, especially on matters affecting civil liberties and civil rights.

The Supreme Court has put together elements from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to recognize a constitutionally protected right to personal privacy, especially with regard to marital privacy, including the woman's right to choose an abortion.

The framers knew from their own experiences that in their zeal to maintain power and to enforce the laws, public officials are often tempted to infringe on the rights of those accused of crimes. To prevent such abuse, the Bill of Rights requires federal officials to follow detailed procedures in making searches and arrests and in bringing people to trial.

The Supreme Court continues to play a prominent role in developing public policy to protect the rights of the accused, to ensure that the innocent are not punished, and to guarantee that the public is protected against those who break the laws. The Court's decisions influence what the public believes and how police officers and others involved in the administration of justice behave. But the Court alone cannot guarantee fairness in the administration of justice.

Americans are committed to equality, an elusive term, with most support for equality of opportunity, some for equality of starting conditions, and some for equality of results.

Progress in securing civil rights for African-Americans was a long time in coming. After the Civil War the national government briefly tried to secure some measure of protection for the freed slaves and to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights laws passed to implement them. But when federal troops withdrew from the South in 1877, the national government withdrew from the field and blacks were left to their own resources. Not for nearly a century did the national government take action to prevent racial segregation and discrimination against blacks.

The forces of civil rights discontent exploded in the summer of 1963. When demonstrators in Birmingham were met with hoses, dogs, and mass arrests, the nation was mobilized to attention. That summer Martin Luther King, Jr., led the March on Washington, and the following year the Civil Rights Act of 1964 was passed.

The crusade for women’s rights was born partly out of the struggle to abolish slavery. Similarly, the modern women’s movement learned and gained power from the civil rights movements of the 1950s and early 1960s. The fate of these two social movements has long been intertwined. Women secured the right to vote in the Nineteenth Amendment.

Concern for equal rights under the law continues today for African-Americans and women. Hispanics, Asian Americans, and Native Americans have also experienced discrimination.

The Supreme Court uses a three-tiered approach to evaluate the constitutionality of laws challenged as violating the equal protection clause. Laws touching economic concerns are sustained if they are rationally related to the accomplishment of a legitimate government goal. Laws that classify people because of sex are subject by the courts to heightened scrutiny and are sustained only if they serve important governmental objectives. Strict scrutiny is used to review laws that touch fundamental rights or classify people because of race or ethnic origin. Such laws will be sustained only if the government can show a compelling public purpose.

A series of constitutional amendments, Supreme Court decisions, and laws passed by Congress have now secured the right to vote to all Americans, age 18 and over. Following the Voting Rights Act of 1965, the Justice Department can oversee practices in locales with a history of discrimination. Recent Supreme Court decisions have refined the lengths to which legislatures can go, or are obliged to go, in creating minority-majority districts.

Brown v. Board of Education of Topeka (1954) struck down the "separate but equal" doctrine that had justified segregated schools in the South, but school districts responded slowly. In 1969 the Supreme Court demanded immediate compliance, and some federal courts mandated busing children across neighborhoods to comply. Still, full integration has proved elusive, as "White Flight" has made many inner cities and their schools predominantly black or Hispanic.

The constitutionality of affirmative action programs that provide special benefits to members of groups subjected to past discrimination divide the nation and the Supreme Court. Voters in states have adopted propositions that forbid universities and other state agencies to take race and gender into account.