Civil Liberties and Civil Rights
What you must know
Distinguish civil liberties (protections from government, e.g., speech, religion, due process) from civil rights (protection against discrimination, equal treatment). Know how the Bill of Rights was applied to states through selective incorporation via the Fourteenth Amendment's due process clause.
Key First Amendment doctrines: establishment clause (Lemon test, later replaced by history-and-tradition approaches), free exercise, symbolic speech, clear and present danger, and prior restraint. Second Amendment, Fourth Amendment (search and seizure, exclusionary rule), Fifth and Sixth (self-incrimination, counsel), Eighth (cruel and unusual punishment).
Civil rights history: Dred Scott, Plessy v. Ferguson (separate but equal), Brown v. Board of Education (overturned Plessy), the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Nineteenth Amendment. Know strict scrutiny, intermediate scrutiny, and rational basis standards, and how the Fourteenth Amendment's equal protection clause drives them.
Traps
- Confusing liberties (individual freedoms) with rights (equality/nondiscrimination).
- Believing the Bill of Rights originally applied to states; it did not until incorporation.
- Treating all speech as equally protected; obscenity, incitement, and fighting words are exceptions.
- Mixing up the tiers of scrutiny and which groups or classifications they protect.
Worked example / rule of thumb
A state law restricting a fundamental right or classifying by race triggers strict scrutiny (compelling interest, narrowly tailored). Gender classifications get intermediate scrutiny. Economic regulations get rational basis. Rule of thumb: the more suspect the classification or fundamental the right, the higher the scrutiny.