4.1 What Are Civil Liberties

Learning Objectives

By the end of this section, you will be able to:

• Define civil liberties and civil rights

• Describe the origin of civil liberties in the U.S. context

• Identify the key positions on civil liberties taken at the Constitutional Convention

• Explain the Civil War origin of concern that the states should respect civil liberties

Introduction

The U.S. Constitution—particularly the Bill of Rights—protects the freedoms and rights of individuals. This protection is not limited to citizens or adults; it generally refers to "persons." This encompasses children, visitors from other countries, and immigrants—both permanent and temporary, legal and undocumented. As a result, they enjoy the same freedoms while in the United States or its territories. Thus, visitors like a Japanese tourist at Disney World or individuals overstaying their visa retain their liberties. For clarity, while everyday conversation often treats freedoms, liberties, and rights as synonymous, distinctions exist—similar to how separation of powers and checks and balances are often interchanged although they represent different concepts.

Defining Civil Liberties

• Political Scientists' View: Civil liberties and civil rights are distinct even though the Constitution protects both.

• Civil Liberties: Generally viewed as limitations on government power, aimed at protecting freedoms from legal government interference.

  • First Amendment: Protects the free exercise of religion, prohibiting both state and federal government from forbidding individuals from following their chosen religion.

    • U.S. citizens can create their own faiths and recruit followers, notwithstanding common disapproval from society or government.

    • However, the practice of religion may be regulated to ensure it does not infringe on the rights of others (e.g., vaccination vs. public education).

  • Eighth Amendment: Prohibits cruel and unusual punishment, which courts interpret as unconstitutional for torturing suspects. Definitions of cruelty and unusual have evolved, currently influencing debates on solitary confinement and capital punishment.

Civil Rights

• Definition: Guarantee that government officials treat individuals equally, basing decisions on merit rather than personal characteristics like race or gender.

• Legal Context: It is unlawful for publicly-funded entities (e.g., schools, landlords) to discriminate against individuals based on race, ethnicity, age, sex, or national origin.

  • Historical Cases: Courts have ruled against discriminatory school practices in the 1960s and 1970s and have challenged policies such as the 2017 border policy separating undocumented families, which continued even into 2018.

Historical Context of Civil Rights and Liberties

• Arguments for rights in America draw from the Declaration of Independence, where Thomas Jefferson leveraged John Locke's philosophy on inalienable rights.

  • Jefferson's declaration states that no ruler can deny natural rights, serving as a critique of King George III's infringement on colonist liberties.

• Although the Declaration does not enumerate specific rights, it influenced state-level protections for civil liberties and rights, resonating with women's and minority rights struggles based on its famous phrase, "all men are created equal."

The American Civil Liberties Union (ACLU)

• Founded in 1920, the ACLU is a longstanding non-partisan organization dedicated to defending individual rights under the Constitution, having litigated many Supreme Court cases.

Civil Liberties and the Constitution

• Original Constitution (1787) did not include a Bill of Rights; the proposal was briefly considered and dismissed during the Constitutional Convention. The framers prioritized maintaining the union amid unrest and external threats.

• Federalists' Perspective: Believed that rights were sufficiently protected in the Constitution's main body, drawing lessons from previous abuses under British authority.

  • Article I, Section 9 of the Constitution includes provisions limiting Congressional power, such as:

    • Bills of Attainder: Laws punishing individuals without trial.

    • Ex Post Facto Laws: Laws retroactively punishing acts that were not crimes at the time of commission.

    • Writ of Habeas Corpus: Legal procedure requiring a neutral judge to review the legality of someone's detention. Historically challenged during wartime.

      • Civil War Example: Lincoln detained suspected Confederate sympathizers, leading to the Supreme Court ruling in Ex parte Milligan, asserting that civilian courts cannot be bypassed.

  • In 1919, Justice Holmes dissented in the Abrams v. U.S. case against antiwar pamphleteers, supporting broader free speech rights.

National Security vs. Civil Liberties

• During WWII, unjustified internment of Japanese Americans occurred, upheld by Ex parte Quirin. Modern security measures post-9/11 saw the detainment of terrorists, often without civilian trials, raising ongoing debates on balancing national security and civil liberties.

Debating the Bill of Rights

• The Federalists posited that a Bill of Rights was unnecessary and risky; Anti-Federalists championed it as crucial for safeguarding against government overreach.

• Washington's inaugural speech hinted at the need for a Bill of Rights, leading to its inclusion as a strategy to obtain ratification from states like New York and Virginia.

• The Alien and Sedition Acts (1798) exemplified governmental overreach during conflict, imposing restrictions on free speech.

Extending the Bill of Rights to the States

• Initially, the Supreme Court did not extend the Bill of Rights protections to state actions, evident in Barron v. Baltimore (1833).

• Following the Civil War and the passage of the Thirteenth Amendment, the rights of formerly enslaved persons were contested, leading to the creation of the Fourteenth Amendment.

  • Fourteenth Amendment's Impact:

    • Prohibits states from enacting laws that abridge the privileges or immunities of U.S. citizens.

    • Significantly introduces due process, often interpreted to protect fundamental civil liberties from state infringement.

• Selective Incorporation: Through various rulings since 1897, the Supreme Court methodically applied elements of the Bill of Rights to states, e.g., enforcing due process and fair trials.

Recent Developments

• The process of selective incorporation is ongoing, as seen when the Supreme Court ruled in 2008 that the Second Amendment protects individual gun rights, later applying this to states in 2010 (McDonald v. Chicago).

• Censorship debates continue, highlighted by Near v. Minnesota (1931) ruling that declared most forms of censorship unconstitutional except in rare cases.