Ilann Margalit Maazel
Ilann Margalit Maazel ()

With a new administration in power, civil rights lawyers are suddenly in demand. Most places I go, civil rights, civil liberties, basic constitutional norms and freedoms seem to be on the collective mind. This is a good time, then, for a refresher on basic civil rights protections we all enjoy under the U.S. Constitution.

The Fourth Amendment

Where to begin? For many, the Fourth Amendment is the principal bulwark against abuse of power by government. It prohibits “unreasonable searches and seizures” and requires warrants to be based on probable cause. These protections apply in a wide variety of circumstances. The Fourth Amendment generally prohibits arrests without probable cause, almost all searches and arrests in a home without a warrant, and police stops without reasonable suspicion. The Fourth Amendment covers searches by police officers of course, but also searches by other government employees such as public school teachers. The Fourth Amendment also prohibits excessive force, a species of “unreasonable … seizure[].” Excessive force can include a police shooting, physical abuse, or unnecessary rough treatment incident to arrest (for example, tightening handcuffs to inflict unnecessary pain on an arrestee).

The Fourth Amendment comes into play if the FBI tries to hack your iPhone, the CIA tries to hack your television, or the NSA tries to hack your email, phone calls, and Internet use. Anytime someone working for or with federal, state, or local government seizes, arrests, detains, or imprisons someone, or searches their “persons, houses, papers, and effects”—including phone calls, email, texts, and all personal communications—the Fourth Amendment almost certainly applies.

If government’s greatest power is to restrain liberty, even to the point of taking life, the Fourth Amendment is our chief protection against abuse of that power.

Trial Rights

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The key rights here: notice of the precise charges, a trial, a jury trial, a speedy trial, an impartial jury, the right to confront and cross-examine witnesses, and the right to counsel.

Many criminal defense lawyers believe the most important right in the Constitution is the right to a jury trial, an almost uniquely American right. But all Sixth Amendment rights are important and must be read together. The right to an impartial jury encompasses the right to voir dire of potential jurors, to cause challenges in voir dire, to change venue when a jury venire has been irrevocably tainted by pretrial publicity, and now, to inquire into jury deliberations where a juror makes overt, prejudicial comments based on race.

The right to a speedy trial is no less important: Justice delayed is justice denied. When the right to a speedy trial is illusory, because of case backlogs or other factors, prosecutors have enormous power to wear criminal defendants down with endless court appearances and the specter of a criminal prosecution, both of which cause defendants to plead guilty, whether they are guilty or not.

The right to counsel in criminal cases includes the right to competent counsel (effective assistance of counsel) and, as of Gideon v. Wainwright, 372 U.S. 335 (1963), to free counsel. It also includes the right to counsel at various stages before trial. The U.S. Supreme Court, however, has not decided whether the counsel right includes a right to adequately funded counsel, a critical gap given the general imbalance in resources between prosecutors and indigent defendants.

Note, however, the limitation on all of these Sixth Amendment rights: The amendment applies only to “criminal prosecutions.” What if the government detains alleged terrorists or enemy fighters, and sends them to Guantanamo for decades to remove them from the battlefield, not to prosecute them? What if the government detains American citizens in the United States as so-called “enemy combatants,” not “criminal defendants”? The potential for an end-run around the Constitution is obvious. In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court held that the Sixth Amendment does not apply to such a case, but the Due Process Clause requires that the alleged enemy combatant “be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker.” In dissent, Justices Antonin Scalia and John Paul Stevens wrote (correctly, in my view) that all of the constitutional protections afforded criminal defendants must apply, no matter which label the government chooses to assign to the arrestee. Otherwise, the government could eliminate dozens of constitutional rights simply by the label it assigns to the people it detains.

Due Process

The Fifth and 14th Amendments prohibit, respectively, federal and state government from depriving any person “of life, liberty, or property, without due process of law.” Due Process has turned out to be the most broad and elastic of all constitutional protections.

“Procedural Due Process” follows a straightforward textual reading of the amendments, requiring various levels of process before the government can deprive someone of liberty or property interests. These interests are many, including to governmental benefits (welfare, Social Security, food stamps, Medicare and Medicaid benefits, etc.), non-at will government employment (including at state universities), doctor staff privileges at a public hospital, a liquor license, a driver’s license, and a doctor or lawyer’s license.

The greater the deprivation, the greater the required process. A public school student facing a disciplinary warning is entitled to less process than a student facing a five-day suspension. Minimal due process rights almost always include notice and an opportunity to be heard. Greater due process rights may include a hearing, cross-examination, the right to present evidence, right to counsel, and right to appeal.

The more controversial cousin of Procedural Due Process is “Substantive Due Process,” which generally prohibits government conduct that shocks the conscience, or that invades core personal liberties. The Supreme Court has held that Substantive Due Process protects the right to bodily integrity, to use contraception, to an abortion, to have sex, to marry (including gay marriage), and to raise children without government interference.

Equal Protection

The 14th Amendment also requires government to provide “equal protection of the laws.” The principle of equal protection applies to every aspect of governmental action, whether by immigration officials at our borders, police, corrections officers, public school teachers, government employers, Congress, or the executive branch. The key to the Equal Protection clause is the level of scrutiny courts apply. Government discrimination based on race receives the strictest scrutiny, and will rarely be constitutional. Government discrimination based on sex receives intermediate scrutiny. Government discrimination based on most non-immutable characteristics such as income or profession must only have a rational basis to satisfy equal protection.

Like due process, equal protection applies in a wide variety of contexts. If a public school is deliberately indifferent to known pervasive and severe sexual harassment at school, the school violates equal protection. If the prosecution uses its peremptory challenges in order to remove black jurors, that violates equal protection. State miscegenation laws violate equal protection. Redistricting election districts to dilute black votes violates equal protection. And of course, school segregation violates equal protection.

Freedom of Speech

Under the First Amendment, government may not abridge “the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Free Speech clause again applies in a wide variety of circumstances. At the most basic level, government officials may not take adverse action—for example, arrest, detention, imprisonment, prosecution, use of force—against anyone because of speech. In addition, the government may almost never restrain private persons from engaging in speech, even on matters implicating national security (as we learned in the Pentagon Papers case). Exceptions to these rules are narrow, and dwindling. One important exception is speech “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action,” the famous test under Brandenburg v. Ohio, 395 U.S. 444 (1969).

The First Amendment protects the right of people to assemble and protest in public fora, such as parks, squares, and streets, subject to reasonable and neutral time, place and manner restrictions—a particularly useful right should one wish to demonstrate against a certain president in front of any number of buildings in Manhattan. The First Amendment is a check on defamation actions, protecting even “false” speech “about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity).” New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Again, a useful right should one wish to criticize a president prone to threatening defamation actions. The First Amendment also provides (increasingly) limited rights to public employees to speak out on issues of public concern.

Freedom of Religion

The First Amendment also prohibits government from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” Government discrimination based on religion violates the Free Exercise clause. It is plain, for example, that a president cannot ban Muslim immigrants from entering the country because they are Muslim. Nor can the government require a Muslim (or any religious) registry, or ID card, nor engage in profiling based on religion.

Remedies

As a general matter, courts can restrain the government from violating the Constitutional rights of a plaintiff. In addition, under 42 U.S.C. §1983, any aggrieved person can bring damages suits against anyone acting under color of state law who violates the Constitution. And under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiffs can bring civil rights damages suits against federal officers for violations of at least some sections of the Constitution, including the Fourth Amendment.

These are only Constitutional highlights. The Constitution also prohibits, inter alia, compelled self-incrimination, excessive bail, cruel and unusual punishment, takings without just compensation, slavery, poll taxes, and certain restrictions on voting rights. Of course, the Constitution also provides for divided government, separation of powers, and an independent judiciary with life tenure, all critical if weakening checks in the era of the modern Imperial Presidency (a subject for another column, or more appropriately, a book). And in an era of near-total Republican domination of national government, civil rights lawyers and “the Left” are now (re)discovering the virtues of federalism, from sanctuary cities to state constitutions and even city charters.

Then there is the right to vote, a right enshrined in policy, tradition, state law, and national mores more than in the Constitution itself. For those keeping track, the next national election is in fewer than 20 months.

Should all else fail, the 22nd Amendment prohibits anyone from serving more than eight years in total as president. In contrast, the Russian Constitution, though it prohibits more than two successive presidential terms, permits one person an unlimited total number of presidential terms. George Washington’s two-term example was salutary, but the 22nd Amendment’s restriction on presidential tenure is absolute. Its importance cannot be overstated. History teaches that, however they arrive in power, dictators long overstay their welcome. The longer they stay, the more absolute their power. One need only survey the dictators of the world today to understand this point.

Conclusion

The Constitution is hard to amend and slow to change. In dizzying times, with perceived or actual challenges to the rule of law, and radically altered norms of conduct by leaders in power, this should provide some measure of comfort to those who care about civil rights and the Republic.