History Exam on Civil Rights in 20th Century

Stephanie Siv 4/20/2013 Take Home Test #2 Professor Carroll Laissez Faire constitutionalism was a judicial philosophy that the government cannot and should not regulate the economy. Under this belief the people who were supporters of Laissez Faire constitutionalism supported the idea that the government and the United States as a whole society would benefit the most if its people were free to maximize and control their own business’s and economic decisions.

The Supreme Court employed laissez faire constitutionalism in the late 1800s by making sure that the court itself ruled for laissez faire constitutionalism jurisprudence in court cases such as Plessy v Ferguson, and Lochner v New York. The governments only role in laissez faire constitutionalism was protecting the right of the people to bargain freely. Given this the Supreme Court decisions mirrored legislation and made it illegal prevent a company to prevent another company from entering a business or two businesses conspiring to control a whole supply of a certain good.

In the late 1880s the Supreme Court judges and many others as well issued labor injunctions which was a way to try to prevent labor workers from striking. These labor injunctions made it illegal for these strikers to interfere with new workers taking their jobs, or blocking the entrances to their work place. The court also decided that freedom of contract could be limited when government had compelling reasons.

The court decided that “police power” needed to be established to regulate private property to protect citizens and that it was for the public’s safety and health and that in certain cases the government and police can interfere with property rights if it is within these limits. Other legal devices the Supreme Court used to suppress labor were trespass, vagrancy, obstruction of traffic, disturbing the peace, and conspiracy laws. They also used yellow dog contracts which employers used and they would force an employee to sign saying that you would under no circumstances join the union.

In Lochner v New York (1905) the court decided that limiting the hours worked by bakers was in no way related to health or safety and so it was an interference with liberty of contract. In Holden v Hardy (1898) Supreme Court agreed that the law limiting working hours of coal miners was constitutional because this profession was indeed known to be dangerous. What is known as the Progressive era then came along in the early 1900s and the government and people slowly but surely began rejecting the views of laissez faire constitutionalism.

Housing became more affordable, sanitation become more important with cleaner parks and water, and social Darwinism started to become rejected as well. Businesses began consolidating production and transportation, creating huge corporations with a lot of economic power, also while decreasing the competition. Farmers and workers formed labor unions and agricultural partnerships. The term “liberty of contract” emerged and essentially meant that businesses could make contracts with their employees without government restrictions.

The 16th-19th amendments were all passed during the Progressive era which made income taxes legal, the people got to vote in senators from now on, the 18th amendment created prohibition, and finally the 19th amendment finally gave women the right to vote. In this era the Hepburn act, Federal reserve act were both passed which strengthened interstate commerce, and finally allowed the government to regulate banking. The Progressive era also allowed women to join the work force and this was because of its emphasis on general welfare.

Laissez- Faire constitutionalism was thought to be the cause of the Great Depression and why most people ended up rejecting it. Eventually what is known as the New Deal Era arrived which built programs to employ people and build an infrastructure, and give emergency relief to people. People came to see that the government did have a role in how low people fell in their society so they started giving direct aid to disabled widows with children, social security, helped labor and the formation of unions, and regulated health and safety.

They wanted to increase prices, and stabilize wages, also focused more on shifting resources to the poor instead of the wealthy. Because of this the Civilian Conservation Corps was created whose goal was to give money and resources to the poor away from taxpayers. The executive branch became more powerful. President Roosevelt wanted to move away from laissez faire but the courts were still ruling mostly in favor of laissez faire constitutionalism decisions.

So he decided to promote his New Deals that he would pack the court, he was denied eventually but it had an impact on the court when Justices Hughes and Roberts switched their views and joined Brandeis, Cardozo, and Stone known as the “switch in time that saved nine”. This shifted the view of the Supreme Court towards a liberal majority. Being smaller courts were bound to follow after the Supreme Court they knew the courts position would make it nearly impossible to overturn government regulations in relation to economics because of due process or state rights.

This finally was the end for laissez faire constitutionalism. Liberal constitutionalism was the view that every individual deserved their rights and absolute freedom. This view wanted to maximize popular control of the government. The process of incorporation began in the late 1930s when the Supreme Court had to decide how many of the provisions and how much of the Bill of rights actually should be incorporated into the fourteenth amendments. At first there was selective incorporation which selectively incorporated rights such as political freedoms like speech, press, religious freedom, and the right to a jury.

This was because in a case in 1937 called Palko v Connecticut the court ruled that the amendment only incorporated provisions of the Bill of Rights that embodied fundamental principles of liberty and justice. This however did not allow states to follow the same rules as the federal government nor did it incorporate smaller less important provisions of the Bill of Rights. The other view was total incorporation which as that all provisions not just the select few should be incorporated.

In one case called Palko v Connecticut the Supreme Court decided that the 14th amendment should not incorporate the guarantee to the right to bear arms that was state in the second amendment in the Bill of rights. Another case was Adamson v California Justice Hugo Black believed that the fourteenth amendment should incorporate the entire Bill of Rights but the court ruled that Adams fifth amendment right to not have to testify as his own witness was not incorporated due to the due process clause of the fourteenth amendment.

Another case was Wolf v Colorado where the court decided that his fourth amendment rights should be under the due process clause incorporated but the exclusionary rule was not to be. In Cantwell v Connecticut the supreme court said that his religious freedom protected under the first amendment was incorporated into the fourteenth amendment. Lastly, in Gitlow v New York the court decided to incorporate freedom of speech and press under the first amendment with the fourteenth amendment.

The Scottsboro case reflected racial, ethnic, class, political, and sectional conflicts among Americans in the 1930s. It reflected racial conflicts because all nine boys were black and they were convicted in a Southern state that was still strongly segregated. The jury were all white men that basically thought they committed the rape because they were black even when their cases were strong, and they had good witnesses testify on their behalf it did not matter. This case reflected ethnic conflict because of the Scottsboro boys lawyer Samuel Leibowitz who was of Jewish descent.

Leibowitz was known for defending and winning some huge cases in defense of suspected criminals and was good at what he did. When he went down south from New York to defend the Scottsboro boys he put up a great case, but it did not really matter because they hated him because of his ethnicity and background of being Jewish. They also did not give him a chance because of his class which was upper class in New York City and the jury and people of the south believed that he thought he was higher and better than them which they did not take kindly to, they thought of him as an elitist.

The case also brought in sectional differences as it seemed to become once again a dispute between the northern and southern states like in the Civil War. The verdicts of the nine boys brought anger from the north where the Communist party came in and took charge bringing in a political conflict as well. The communist party rallied blacks and even whites in the northern states and organized marches filled with signs to free the Scottsboro boys. The communists were strong supporters of racial freedom and used this opportunity as a way to challenge capitalism.

The significance of some decisions in the Scottsboro cases were not all the decisions that continued to convict them but the ones that actually helped them. One landmark decision was when the Supreme Court ruled and overturned an earlier ruling for the boys saying that the due process clause of the fourteenth amendment guarantees a right to counsel in a criminal court. The court said that they had found the boys had not had the right to counsel, this did not free them but it did give them a retrial. The other landmark decision came regarding the fact that the jury was consistently filled with all white men in the Alabama courts.

This violated the equal protections clause of the constitution which says that courts cannot exclude citizens from jury or the jury pool solely based on the color of their skin. The court clearly saw that the Alabama courts were not allowing blacks into the pool for jury and this was a violation of the equal protections clause. The first amendment states that congress should not make any law against the freedom of speech. These words seem simple, yet there have been many cases and decisions in Supreme Court history regarding freedom of speech and expression.

The clear and present danger test was created by the court to decide whether or not someone’s speech was threatening and represented clear/present danger or if it did not. This came about due to the passing of the Espionage act in 1917 which made it illegal to make false statements with the intent to cause disloyalty in armed forces, obstruct military recruiting, or to interfere with the success of the military. One important case was Schneck v United States where Schneck who was passing out pamphlets saying that the draft violated thirteenth amendment rights of slavery and that the draft was a form of crime against humanity.

The court ruled that the pamphlet was intended to cause discord within the armed forces and that his speech was not to be covered in his first amendment rights even though normally they would have it depended on the situation, this is another reason the clear and present danger test was created. In Gitlow v New York the court abandoned the clear and present danger test because he had written a manifesto but there was no proof that it led to any criminal action but he did break the Anarchy Act so they still convicted him for his speech in the manifesto.

These cases and the clear and present danger test represented the courts trying to defend free speech but also trying to regulate it. In another case Junius Irving Scales was convicted for being part of the communist party and for recruiting new members into a secret school that trained violence and disruption. Irving said his first and Fifth Amendment rights were being violated because it violated his rights of expression and basically said he was guilty by association.

The court eventually ruled that under the Smith Act someone may be convicted for guilt of association but only If there is clear proof. Symbolic speech was also being battled in the courts and what constitutes this form of speech as being protected under the first amendment and what forms of symbolic speech are not protected. The court ruled in West Virginia Board of Education v Barnette that the government cannot force a person to participate in a symbolic act such as saluting the flag.

This was based that it violated first amendment rights of freedom of belief and expression. There was also the symbolic speech arguments for armbands, draft cards, and flag burning. The supreme court decided in Tinker v Des Moines that wearing armbands expressing certain views such as those opposed to the Vietnam war were under protection of the Free Speech Clause of the first amendment being a type of symbolic speech. The court said it did not affect the schools education and just because kids are at school it does not mean they lose their first amendment rights.

The other issue revolving around the burning of draft cards was in the case O’ Brien v United State. O’Brien was seen in public openly burning their draft cards in front of the South Boston Courthouse in front of many people. The Supreme Court made a ruling on the case which was a first amendment challenge to selective law. The court overturned the previous ruling stating that he was only arrested for doing so in public demonstration with the intent to protest the draft, then was brought to the Supreme Court where they overturned the U. S. ourt of appeals saying it was not protected because ripping a certificate is not protected under his constitutional rights and he needs it as proof he is available for draft, he is guilty not because he publicly protested but because him destroying the card makes life a lot harder for the government. In Texas V Johnson the jurisprudence of the Supreme Court for burning a flag was that his burning of the flag was protected with his first amendment rights because he did it in a fit of rage, not specifically to undermine the government, they took his case into the context that it was.

Freedom of speech and obscenity has proven very difficult for the Supreme Court to define. A huge component of freedom of the press is that public officials cannot prove libel unless malice is also found which was huge in NY Times v Sullivan. This issue of freedom of press comes alongside the term obscene which essentially means anything that is deemed offensive to standards of decency or modesty. The Roth Test came from the first major case in 1957 in Roth v U. S. where the courts tried to define obscenity.

They tried to define obscenity as what the average person who applies contemporary standards of lustful or lewd actions. There were also Comstock laws which attempted to define what was obscene and were anti-obscenity laws. In Stanley v Georgia in 1969 the court said that merely possessing adult porn in one’s home is not a crime, but in Lawrence v Texas was further defined by stating that possessing porn is legal, but not child pornography which is the exception. Then came the Warren Courts and in 1966 these courts made it nearly impossible to ban anything.

Since the 1960s the Supreme Court has developed two kinds of rules regarding obscenity. The first is that the state and federal government have broad authority to ban and prosecute child pornography, and the second is that the government can protect minors but cannot protect anyone 18 and over. Adult pornography is legal, child pornography is not. Another important case was the case of Lawrence v Texas which was important because it stuck down state sodomy laws. One important civil liberty issue arising from the due process protections in the 8th amendment is no cruel and unusual punishment.

This law was made so that even the most notorious criminals did not lose their dignity. This part of the 8th amendment was created in 1791. But even before then the Virginia Bill of Rights in 1776 and the English Bill of Rights even earlier in 1689 also had begun to prohibit excessive, over the top death punishments. With the 1791 passing of no cruel and unusual punishment public hangings were very common death penalties. In past history the decision of whether or not a punishment was too cruel was left to the states to decide with the Supreme Court only intervening on rare occasions.

In modern times the most common form of death penalty used is death by injection, but even that is sometimes thought to be cruel and unusual. In 1910 a case called Weems v United States the ruling was that the constitution does not allow Congress from imposing cruel and unusual punishment. Since that case most of the court cases appealing cruel and unusual punishment stem from procedural problems not substantive due process because the cases are challenging the method of death penalty not the death penalty itself as being unconstitutional. This was put to the test in the case of Furman v Georgia and Greg v Georgia in 1976 and 1972.

In Furman v Georgia, William Furman was convicted of murder and sentenced to death but appealed to the Supreme Court. The court decided that the carrying out of the death penalty in this case under the current system was cruel and unusual punishment because it was applied unfairly. Another case was Gregg v Georgia where the court dealt with whether, overall the death penalty is unconstitutional. The court ruled against this saying it was not cruel and unusual and made it clear that at the sentencing stage mitigating or aggravating circumstances can be taken into consideration.

Another important case was in 2008 in the case of Baze et al v Reese where the court dealt with the broad issue of whether or not the death penalty is in violation with the eight amendment but more importantly whether lethal injection was cruel and unusual. The Supreme court decided that the eight amendment was not being violated by lethal injection and that it may cause some pain because even the most humane forms of execution will have some pain, and that the eighth amendment does not require the execution method to be completely, one hundred percent pain free.