CHAPTER
FIFTEEN - CIVIL
LIBERTIES
A
respect for civil liberties and civil rights is one of the most fundamental
principles of the American political culture.
The founders were very concerned with defining and protecting liberties
and rights, and their efforts are reflected in the Declaration of Independence,
the Constitution, and the Bill of Rights. Civil liberties and rights have
continued to evolve through the years by means of additional amendments
(particularly the Fourteenth), court decisions, and legislative actions.
THE
DECLARATION OF INDEPENDENCE
"We
hold these truths to be self-evident; that all men are created equal, that they
are endowed by their Creator with certain unalienable rights, that among these
are life, liberty, and the pursuit of happiness. That, to secure these rights,
governments are instituted among men, deriving their just powers from the
consent of the governed."
Thomas Jefferson, 1776
The
Declaration clearly reflects the founders' belief that governments are
responsible for protecting the "unalienable rights" of "life,
liberty, and the pursuit of happiness." Since people are clearly capable of
abusing the "natural rights" of others, the government must protect
the rights of its citizens.
Most
of the framers believed that the basic "natural rights" were
guaranteed by the original Constitution before the Bill of Rights was added.
Rights specifically mentioned in the body of the Constitution are:
THE
WRIT OF HABEAS CORPUS
"The
privilege of the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety may require it."
Article
One, Section Nine
The
Constitution of the United States
Habeas
Corpus
literally
means "produce the body." The writ is a court order requiring
government officials to present a prisoner in court and to explain to the judge
why the person is being held. Suspension of habeas corpus is a right of
Congress, since the passage above appears in Article One, which defines the
powers of Congress.
Originally, the
writ was only a court inquiry regarding the jurisdiction of the court that
ordered the individual's confinement, but today it has developed into a remedy
that a prisoner can formally request. A federal judge may order the jailer to
show cause why the person is being held, and the judge may order the prisoner's
immediate release.
The
Supreme Court under Chief Justice Rehnquist has severely limited the use of habeas
corpus partly because prisoners on death row have used it to delay their
executions, sometimes for years. Supporters of habeas corpus believe that
judges should be allowed to use their own judgment in issuing the writs because
they are protecting constitutional rights.
EX
POST FACTO LAWS AND BILLS OF ATTAINDER
The
Constitution forbids both national and state governments from passing ex
post facto laws. An ex post facto law is a retroactive criminal law that
affects the accused individual negatively. Such laws may make an action a crime
that was not a crime when committed, or they may increase punishment for a crime
after it was committed. On the other hand, the restriction does not apply to
penal laws that work in favor of the accused.
A
bill of attainder is a legislative act that punishes an individual or group without
judicial trial. The Constitution
forbids them because the founders believed that it is the job of the Courts, not
Congress, to decide that a person is guilty of a crime and then impose
punishment
THE
BILL OF RIGHTS
The overwhelming majority of court decisions that define American civil liberties are based on the Bill of Rights, the first ten amendments added to the Constitution in 1791.
Even though most of the state constitutions in 1787
included separate bills of rights for their citizens, the original Constitution
mentioned only the rights listed above. These
rights were scattered throughout the articles, with most of the attention
focused on defining the powers of the branches of government, not on preserving
individual rights. Many people were widely suspicious of these omissions,
and in order to gain ratification, the founders agreed to add ten amendments in
1791, the Bill of Rights.
The
Constitution and the Bill of Rights form the basis of Americans values
concerning civil liberties and civil rights, but they have been supplemented
through the years by other amendments, court decisions, and legislative action.
THE FOURTEENTH
AMENDMENT
Civil
rights are also protected by the Fourteenth Amendment, with protects
violation of rights and liberties by the state governments.
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.ä
Amendment
Fourteen, Section One
Although
the Fourteenth Amendment was originally passed in the post-Civil War era
specifically to protect the rights of ex-slaves, the famous Section One protects
many citizens' rights from abuse by state governments Whereas the Bill of Rights
literally applies only to the national government, the Fourteenth Amendment is
intended to limit the actions of state governments as well. Section One
includes:
One
important consequence of the Fourteenth Amendment is the incorporation of
the Bill of Rights to apply to the states.
The Bill of Rights originally only limited the powers of the federal
government. For example, in 1833 in
Barron vs. Baltimore the U.S. Supreme Court ruled that the Bill of
Rights did not apply to state laws. It
was assumed that the statesâ bills of rights would protect individuals from
abuse by state laws. However, the
14th Amendment nationalized the nature of civil rights with this
statement:
ãNo State shall·deprive any person of life, liberty,
or property, without due process of law.ä
Incorporation
happened gradually over time through individual court decisions that required
states to protect most of the same liberties and rights that the Bill of Rights
protects from federal abuse. These
changes are reflected in numerous court decisions made between 1925 and 1969.
Two examples of cases that reflect incorporation are:
á
Gitlow v. New York (1925)
ö Benjamin Gitlow was arrested and found guilty of breaking a New York state
sedition act when he passed out pamphlets that supported socialism and overthrow
of the government. Gitlow believed
that his freedom of speech was violated, and the case was appealed to the
Supreme Court Even though the Court did not declare the New York law
unconstitutional, the majority opinion stated that ãfundamental personal
rightsä were protected from infringement by states by the Due Process Clause
of the Fourteenth Amendment.
COURT
DECISIONS
The
Supreme Court continues to shape the definition and application of civil rights
and civil liberties. Although the court has always played an important role in
the protection of civil rights and civil liberties, it has been particularly
active in the modern era since about 1937. The Supreme Court sets precedents
that influence legislation and subsequent court decisions. The Court's influence
is based largely on judicial review, the power to judge the
constitutionality of a law or government regulation.
LEGISL
The Constitution,
the Bill of Rights, and the Fourteenth Amendment protect individuals from
actions of government, but court decisions and legislation protect individuals
from discriminatory actions by private citizens and organizations. Legislative
action is an essential component of the modern civil rights era, although the
courts took the earliest initiatives.
The
activist court of the 1960s set precedents that broadly construe the commerce
clause, which gives Congress the power to regulate interstate and foreign
commerce. As a result, through laws like the Civil Rights Act of 1964, the
legislature has played a major role in combating discrimination.
The
Constitution, the Bill of Rights, the Fourteenth Amendment, Supreme Court
decisions, and legislative actions all define the nature of civil rights and
civil liberties in American society, but issues arise which constantly cause
reinterpretations of the sources. Conflicts arise largely because issues often
involve one citizen's or group's rights versus another's.
FIRST
AMENDMENT LIBERTIES
"Congress
shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof; or abridging 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 First Amendment
The Constitution of the United States
The
First Amendment protects several basic liberties: freedom of religion, speech, press,
petition, and assembly. Interpretation
of the amendment is far from easy, as court case after court case has tried to
define the limits of these freedoms. The
definitions have evolved throughout American history, and the process continues
today.
The
1st Amendment protects freedom of religion in two separate clauses:
the ãestablishmentä clause, which prohibits the government from
establishing an official church, and the ãfree exerciseä clause that
allows people to worship as they please. Surprisingly, the First Amendment does not refer
specifically to the "separation of church and state" or a "wall
of separation." Those phrases evolved later, probably from letters
written by Thomas Jefferson, but the First Amendment does prohibit the
establishment of a government sponsored religion, such as the Anglican Church in
England.
The
Establishment Clause
The
Everson v. Board of Education case in 1947 challenged a New Jersey
town for reimbursing parents for the cost of transporting students to school,
including local parochial schools. The plaintiffs claimed that since the
parochial schools were religious, publicly financed transportation costs could
not be provided for parochial students. The challenge was based on the
establishment clause. The court in this case ruled against the plaintiffs,
claiming that busing is a "religiously neutral" activity, and that the
reimbursements were appropriate. However, the majority opinion declared that
states cannot support one religion above another.
Aid
to church-related schools has been a topic at issue with the establishment
clause. In 1971 in Lemon v.
Kurtzman, the Supreme Court ruled that direct state aid could not
be used to subsidize religious instruction. The Courtâs opinion stated that government aid to religious
schools had to be secular in aim, and that ãan excessive government
entanglement with religionä should be avoided.
However, in recent years the Court has relaxes restrictions on government
aid to religious schools. For
example, in 1997 the Supreme Court overturned Aquilar v. Felton,
a 1985 decision that ruled unconstitutional state aid for disadvantaged students
who attend religious schools.
A
current establishment clause issue is that of school vouchers that allow
individuals to ãpurchaseä education at any school, public or private.
School districts in several states, including Florida, Ohio, and
Wisconsin, have experimented with voucher programs.
In 2002 the Supreme Court held that the Cleveland voucher system was
constitutional, although almost all the students used the vouchers to attend
religious schools.
The
most controversial issue of the separation of church and state has been school
prayer. The first major case was Engle
v. Vitale (1962). In this
case, the Court banned the use of a prayer written by the New York State Board
of Regents. It read, ãAlmighty
God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us,
our parents, our teachers, and our country.ä
Later decisions overturned laws requiring the saying of the Lordâs
Prayer and the posting of the Ten Commandments in classrooms.
In 1985, Wallace v. Jaffree banned Alabamaâs ãmoment of
silenceä law that provided for a one-minute period of silence for
ãmeditation or voluntary prayer.ä
In
recent years prayer outside the classroom has become an issue, with student
initiated prayer at graduation ceremonies and sports events at its focus.
In 2000 the Supreme Court affirmed a lower court ruling that school
prayer at graduation did not violate the establishment clause, but that prayer
over loud speakers at sports events did.
The Free Exercise Clause
The
free exercise clause does not allow any laws ãprohibiting the free exercise of
religion.ä The courts have
interpreted the 14th Amendment to extend the freedom to protection
from state governments as well. Religions
sometimes require actions that violate the rights of others or forbid actions
that society thinks are necessary. The
Supreme Court has never allowed religious freedom to be an excuse for any type
of behavior. It has consistently
ruled that people have the absolute right to believe what they want, but not
necessarily the right to religious practices that may harm society.
Some
outlawed practices have been polygamy, the use of poisonous snakes in religious
rites, and prohibiting medical treatment to children based on religious beliefs.
On the other hand, Courts have disallowed some government restrictions of
religious exercise, such as forcing flag salutes and requiring Amish parents to
send their children to school after eighth grade.
Citizens
of modern America almost take for granted the responsibility of the government
to guarantee freedom of speech. In reality, the definition of freedom of speech
has changed dramatically over the years, with an ever-increasing emphasis on
protection of free speech, often at the expense of other liberties and rights.
Until recently, especially during times of war and crisis when national security
is at stake, the government has passed laws that control free speech.
Free
Speech v. National Security
Early
in United States history the government almost certainly did not put high
priority on the government's responsibility to protect freedom of speech. John
Adams, when faced with an international crisis that threatened war with France,
saw that Congress passed the Sedition Act of 1798, making it a crime to
write, utter, or publish anti-government statements with the "intent to
defame." The Federalists, who favored strong government authority and
emphasized order at the expense of liberty, believed that the First Amendment
did not forbid punishing newspapers for libel. The Anti-Federalists did NOT
argue that the press should be free of government controls; they protested the
act on the grounds that state, not federal government should have control.
Thomas Jefferson, a prominent Anti-Federalist, allowed the twenty-year
limitation of the Act to run out during his presidency, and the Act died during
peace time with little protest.
Presidents,
such as Abraham Lincoln during the Civil War, continued to support the
government's right to restrict freedom of speech during national security crises
through the 19th century and into the 20th. During World War I, the U.S.
Congress passed two controversial laws that restricted freedom of speech: The
Espionage Act of 1917 and the Sedition Act of 1918.
The
Espionage Act of 1917 forbid false statements that intended to interfere with
the U.S. military forces or materials to be mailed if they violated the law or
advocated resistance to government
The Sedition Act
of 1918 forbid individuals to utter, print, write or publish language intended
to incite resistance to the U.S. government. Under the mandate of the Sedition
Act, thousands were arrested and convicted, and some were deported from the
country.
The
most famous Supreme Court case that resulted from the World War I restrictions
was Schenck v. U.S. Charles Schenck, a socialist who mailed
circulars to young men urging them to resist the military draft, was convicted
of violating the Espionage Act. The Supreme Court upheld his conviction, with
Oliver Wendell Holmes writing the precedent-setting opinion that any language
that directly caused an illegal act was not protected by the First Amendment.
Holmes distinguished between language that was merely critical of the government
and that which was directly a "clear and present danger" to national
security. The "clear and present danger" test became a standard
by which to balance national security and freedom of speech.
Even
before the U.S. entered World War II, Congress passed the Smith Act,
intending to protect the country from the influence of Nazism and Communism. The
Act contained two clauses:
A
few cases were tried for wartime behavior, but the real impact of the Smith Act
came after World War II was over with the fear of Communist espionage in the Red
Scare, or McCarthyism. The U.S. experienced a dramatic reaction to the Cold War,
fueled by the fear that communists were infiltrating the U.S. government and
passed security secrets to the Russians. The Internal Security Act of 1950
required Communist organizations to register and to publish membership lists.
Many were questioned by Congressional Committees and many were arrested.
By
the late 1950s, with McCarthyism subsided and a new Supreme Court under the
direction of Earl Warren, the Court leaned more and more toward freedom of
speech. No laws were passed restricting speech during the Vietnam War, and the Brandenburg
v. Ohio case established that speech would have to be judged as inciting
"imminent" unlawful action in order to be restricted. The case
involved a Ku Klux Klan leader convicted of attempting to incite mob action when
he said "We'll take the (expletive deleted) street later." The
conviction was overturned by the Supreme Court because Brandenburg did not call
for an "imminent" action.
Restrictions
on Free Speech
Today,
the following forms of speaking and writing are not granted full constitutional
protection
1) Libel, a written statement that attacks another person's character, is not automatically protected, although it is very hard to sue for libel. Public figures must prove that a statement is not only false but that it intended "actual malice," a condition that is very hard to define.
2)
Obscenity is not protected, but the Court has always had a difficult time
defining obscenity. The current Court leaves local governments to decide
restrictions for hard-core pornography, but of they choose to restrict it, they
must meet some strict constitutional tests. One common reaction has been for a
local government to establish areas where pornography can and can't be sold. A
new issue concerns pornography on the internet. In 1997 the Supreme Court ruled the Communications Decency
Act unconstitutional because it infringed too much on free speech.
3)
Symbolic speech, an action meant to convey a political message, is not protected
because to protect it would be to allow many illegal actions, such as murder or
rape, if an individual meant to send a message through the action. The Court
made an exception to the action of flag-burning in Texas v. Johnson
(1989), when it declared that the Texas law prohibiting flag desecration was
unconstitutional. Since flag-burning has no other intent than to convey a
message, the Court has ruled that it does not incite illegal actions. Symbolic
speech includes advocacy of illegal actions, as well as "fighting
words," or inciting others to commit illegal actions.
However, in 2003 the Supreme Court ruled that a Virginia law that
prohibited the burning of a cross with ãan intent to intimidateä did not
violate the First Amendment. The Court reasoned that a burning cross is an instrument of
racial terror so threatening
PRIVACY
RIGHTS
The
phrase "right to privacy" does not appear anywhere in the
Constitution or the Bill of Rights. The idea was first expressed in the 1965 Griswold
v. Connecticut case in which a doctor and family-planning
specialist were arrested for disseminating birth control devices under a
little-used Connecticut law that forbid the use of contraceptives. The Supreme
Court ruled against the state, with the majority opinion identifying
"penumbras" - unstated liberties implied by the stated rights - that
protected a right to privacy, including a right to family planning.
The
most important application of privacy rights came in the area of abortion as
first ruled by the Court in Roe v. Wade in 1973. Jane Roe
(whose real name was Norma McCorvey) challenged the Texas law allowing abortion
only to save the life of a mother. Texas argued that a state has the power to
regulate abortions, but the state overruled, forbidding any state control of
abortions during the first three months of a pregnancy and limiting state
control during the fourth through sixth months. The justices cited the right to
privacy as the liberty to choose to have an abortion before the baby was viable.
The Roe v. Wade decision sparked the controversy that surrounds abortion
today.
Since
the late 1980s the Supreme Court has tended to rule more conservatively on
abortion rights. For example, in Webster
v. Reproductive Health Services (1989) the Court upheld a Missouri statue
that banned the use taxpayer-supported facilities for performing abortions.
In 1992, the Court upheld a Pennsylvania law that required pre-abortion
counseling, a waiting period of twenty-four hours, and for girls under eighteen,
parental or judicial permission. In
2000 the court reviewed a Nebraska act that banned ãpartial birthä abortion,
a procedure that could only take place during the second trimester of a
pregnancy. The Court declared the
act unconstitutional because it could be used to ban other abortion procedures.
The majority opinion also noted that the law did not include protection
of the health of the pregnant women. In
2003, the U.S. congress passed a national law similar to the Nebraska act, and
it was immediately challenged in court.
The
due process clauses in the Fifth and Fourteenth Amendment forbid the
national and state governments to "deny any person life, liberty, or
property without due process of law." Although the Supreme Court has
refused to define precisely what is meant by due process, it generally requires
a procedure that gives an individual a fair hearing or formal trial. Although
due process is most often associated with the rights of those accused of crimes,
it is required for protecting property rights as well.
PROPERTY
RIGHTS
The
founders saw the government as not only the protector of property but also the
potential abuser of property rights.
The
Fifth Amendment allows the government the right to eminent domain (the
power to claim private property for public use), but the owner must be fairly
compensated. The Court has interpreted this clause to be a direct taking of
property, not just a government action that may result in a property losing
value, such as a rezoning regulation. Also, the government and the property
owner sometimes interpret "just compensation" differently.
In such a case, the courts are the final arbitrators.
THE
FOURTH AMENDMENT AND SEARCH AND
SEIZURE
Freedom from ãunreasonable
search and seizureä is guaranteed by the Fourth Amendment. To prevent
abuse by police, the Constitution requires that searches of private property are
permissible only if ãprobable causeä exists that indicates that a crime may
have taken place.
An
important limitation was set on police searches by
Mapp v.
Ohio,
a 1961 case in which the police broke into the home of Dollree Mapp, a woman
under suspicion for illegal gambling activities. Instead, they found obscene
materials and arrested Mapp for possessing them. She appealed her case, claiming
that the Fourth Amendment should be applied to state and local governments, and
that the evidence had been seized illegally. The police, she claimed, had no
probable cause for suspecting her for the crime she was arrested for. The court
ruled in her favor, thus redefining the rights of the accused.
FIFTH
AMENDMENT RIGHTS
The
Fifth Amendment forbids self-incrimination, stating that no one "shall be
compelled to be a witness against himself." The rights for protection
against self-incrimination originated from a famous 1966 Court decision Miranda
v. Arizona. Ernesto Miranda was arrested as a prime suspect in
the rape and kidnapping of an eighteen year old girl. During a two hour
questioning by the police, he was not advised of his constitutional right
against self-incrimination nor his right to counsel. His responses led to his
conviction, but the Supreme Court reversed it, and set the modern Miranda
Rights: to remain silent, to be warned that responses may be used in a court
of law, and to have a lawyer present during questioning.
A
very important principle related to both the 4th and 5th
Amendments is the exclusionary rule, which upholds the principle that
evidence gathered illegally cannot be used in a trial.
Critics of the exclusionary rule, including Chief Justice William
Rehnquist, express doubts that criminals should go free just because of mistakes
on the part of the police. However, the Courts continue to apply the exclusionary rule.
THE
EIGHTH AMENDMENT AND CRUEL AND UNUSUAL PUNISHMENT
The
8th amendment prohibits ãcruel and unusual punishments,ä a
concept rooted in English law. By
far, the most controversial issue that centers on the 8th Amendment
is capital punishment, or the practice of issuing death sentences to those
convicted of major crimes.
In
general, states are allowed to pursue their own policies regarding capital
punishment. The Supreme Court did
not challenge the death penalty until 1972 in Furman v. Georgia.
Even
then, it did not judge capital punishment to be cruel and unusual punishment.
It simply warned the states that the death penalty was to be carried out
in a fair and consistent way.
RIGHT
VS. RIGHT
Most
of us think of civil rights and liberties as principles that protect freedoms
for all of us all the time. However,
the truth is that rights listed in the Constitution and the Bill of Rights are
usually competing rights.
Most civil liberties and rights court cases involve the plaintiffâs
right vs. another right that the defendant claims has been violated.
For example, in 1971, the New York
Times published the ãPentagon Papersä that revealed some negative
actions of the government during the Vietnam War.
The government sued the newspaper, claiming that the reports endangered
national security. The
New York Times countered with the argument that the public had the right to
know and that its freedom of the press should be upheld.
So, the situation was national security v. freedom of the press.
A tough call, but the Court chose to uphold the rights of The
Times.
Aquilar v. Felton
Barron vs. Baltimore
Bills of attainder
Bill of rights
Brandenberg. V. Ohio
Clear and present danger test
Cruel and unusual punishment
Due process clause
of the 5th and 14th Amendments
Eminent domain
Engle v. Vitale
Equal
protect clause
Espionage Act of
1917
Establishment clause
Everson v. Board of Education
Ex post facto laws
Exclusionary rule
First Amendment
rights
Fourteenth Amendment
Furman v. Georgia
Free exercise clause
Gideon V. Wainwright
Griswold v.
Connecticut
Habeas corpus
Imminent action
Lemon v. Kurtzman
Mapp
v. Ohio
Miranda
v. Arizona
Miranda
Rights
Moment of silence
Privileges and immunities clause
Right to counsel
Right to privacy
Roe v. Wade
Schenck v. U.S.
school vouchers
Sedition Act of 1798
Sedition Act of 1918
Smith Act
Symbolic speech
Texas v. Johnson
Unreasonable search
and seizure