70 Civil Liberties: What does the contract protect?

The Constitution—in particular, the first ten amendments forming the Bill of Rights—protect the liberties and rights of individuals. It does not limit this protection to citizens or adults; in most cases the Constitution simply refers to “persons” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms as adult citizens within the United States or its territories . Neither Japanese tourists visiting Disney World or visitors exceeding the limit of days allowed on their visas sacrifice those liberties. In everyday conversation, we often treat freedoms, liberties, and rights as effectively the same thing—similar to how separation of powers and checks and balances are often used interchangeably, when in fact they are distinct concepts.

Defining Civil Liberties

For language precision, political scientists and legal experts distinguish between civil liberties and civil rights, even though the Constitution has been interpreted to protect both. We often envision civil liberties as limitations on government power, intended to protect freedoms from illegal government intrusion. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion; the states and the national government cannot forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. You are free to create your own religion and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion may be regulated if it impinges on the rights of others. Similarly, the Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects.

Civil rights are guarantees that government officials will treat people equally and base decisions on the law rather than race, gender, or other personal characteristics. The Constitution’s civil rights guarantee makes it unlawful for a school or university run by a state government to treat students differently based on their race, ethnicity, age, sex, or national origin. In the 1960s and 1970s many states had separate schools where only students of a certain race or gender were able to study. The courts determined that these policies violated the civil rights of students refused admission because of those rules.^[2]

The idea that Americans—indeed, people in general—have fundamental rights and liberties was a core argument for independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of John Locke to express the colonists’ belief in certain inalienable or natural rights that no ruler had the power or authority to deny them. It was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language fundamentally inspired many states to adopt protections for civil liberties and rights in their own constitutions. It also expressed principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities.

Civil Liberties and the Constitution

The Constitution as written in 1787 did not include a Bill of Rights. The idea of including one was proposed and after brief discussion was dismissed in the final week of the Constitutional Convention. The framers believed they faced more pressing concerns than the protection of civil rights and liberties, most notably keeping the fragile union together in the light of internal unrest and external threats.

Moreover, the framers thought they had adequately covered rights issues in the document’s main body. Federalists did include some protections against legislative acts that might restrict citizen’s liberties, based on the history of real and perceived abuses by both British kings, parliaments and royal governors. Article I, Section 9, limits the congressional power in three ways: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the congressional ability to suspend the writ of habeas corpus.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used often in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

Finally, the writ of habeas corpus in our common-law legal system demands that a neutral judge decide whether someone has been lawfully detained. Particularly in times of war, or in response to threats against national security, the government has held suspected enemy agents without access to civilian courts.  This is frequently without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial. For example, during the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military courts, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating.^[3]

During World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin.^[4]

More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.

Debate continues over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I, Section 9, would suffice, and no separate bill of rights was needed. Alexander Hamilton, writing as Publius in Federalist No. 84, argued that the Constitution was “merely intended to regulate the general political interests of the nation,” rather than to concern itself with “the regulation of every species of personal and private concerns.” Hamilton went on to argue that listing specific rights might actually be dangerous as a pretext for people to claim that rights not included in such a list were therefore not protected. Later, in his speech introducing the proposed amendments that would become the Bill of Rights, James Madison acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.”^[5]

For that matter, the Articles of Confederation had not included a specific listing of rights either.

However, the Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. They believed provisions such as the elastic clause in Article I, Section 8 would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus, whom most scholars believe to be Robert Yates, wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.”^[6]

Two centuries of experience suggests the Anti-Federalists may have been correct; while the states retain a significant importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

James Madison ultimately delivered on this promise by proposing a package of amendments in the First Congress. These derived from the Declaration of Rights in the Virginia state constitution, ratification convention suggestions and other sources, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights.

Extending the Bill of Rights to the States

In the decades following the Constitution’s ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore.^[7]

In this case, which dealt with Fifth Amendment property rights, the Supreme Court unanimously decided that the Bill of Rights applied only to federal government actions. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

The prevailing view on the limited application of the Bill of Rights to the states changed in the wake of the Civil War. Soon after the Thirteenth Amendment abolished slavery, state governments—particularly those in the former Confederacy—began to pass “black codes” restricting the rights of former slaves and effectively relegating them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction in Congress demanded the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the black codes. Long-term they proposed two constitutional amendments to guarantee the rights of freed slaves on an equal standing with whites; these rights became the Fourteenth Amendment, dealing with civil liberties and rights in general, and the Fifteenth Amendment protecting the right to vote in particular. But, the right to vote did not yet apply to women or to Native Americans.

Civil liberties were significantly clarified by the Fourteenth Amendment in 1868. First, it states that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” – a provision echoing the privileges and immunities clause in Article IV, Section 2 of the original Constitution ensuring that states treat citizens of other states the same as their own. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states while others have argued that only some rights are extended. In 1999, Justice John Paul Stevens, writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another.^[8]

More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that this clause applied the individual right to bear arms to the states.^[9]

The due process clause is the second provision of the Fourteenth Amendment applying the Bill of Rights to the states. It says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” As in the Fifth Amendment this provision refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process). Although the provision’s text does not mention rights specifically, the courts have held in a series of cases that it indicates certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath.^[10]

Beginning in 1897, the Supreme Court established that various Bill of Rights protections of fundamental liberties must be upheld by the states, even if their state constitutions and laws do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into state practices; in other words, the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it does not do so explicitly. When cases arise to clarify particular issues and procedures, the United States Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.

For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment confirming it is reasonable to try the person for that crime. (A grand jury is a group of citizens charged with deciding if there is enough evidence of a crime to prosecute someone.) The Supreme Court has ruled however that states are not required to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

Selective incorporation is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not then decide it was a fundamental liberty the states must also uphold. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. The Supreme Court also gradually moved to extend the Bill of Rights to the states regarding censorship and the Fourteenth Amendment. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases.^[11]

The Bill of Rights is designed to protect the freedoms of individuals from interference by government officials. Originally these protections were applied only to actions by the national government; different sets of rights and liberties were protected by state constitutions and laws, and even when the rights themselves were the same, the level of protection for them often differed by definition across the states. Most of the Bill of Rights’ protections of civil liberties have been expanded to cover actions by state governments since the Civil War, through the Fourteenth Amendment, a series of Supreme Court decisions and a process of selective incorporation. Nonetheless there is still vigorous debate about what these rights entail and how they should be balanced against the interests of others and of society as a whole.