Civil Liberties

Civil Liberties. The term “civil liberties” refers to those individual freedoms protected by the Constitution, particularly by the Bill of Rights. These are liberties that, when the Constitution was adopted, had come to be seen as natural rights.

Revolutionary War through the Civil War.

In the years leading up to the Revolutionary War, the colonists began voicing their opposition to British policies in the language of natural rights. Having earlier based their rights claims on royal charters and the English common law, they now asserted, in the language of John Locke's Two Treatises on Civil Government (1690), that government could not infringe on certain natural, inalienable rights. This new natural‐rights view of civil liberty later inspired both the Declaration of Independence and the Bill of Rights.

As a public‐policy issue, civil liberties rarely surfaced prior to World War I. Throughout the nation's first 130 years, few occasions arose for suspension of the habeas corpus privilege, press censorship, regulation of the right of assembly, or the imposition of loyalty oaths. Consequently, the law regarding civil liberties remained ill‐defined until well into the twentieth century.

During America's Quasi‐War with France in 1798, the Federalists in Congress enacted the Alien and Sedition Acts, which, under the guise of war‐justified controls, criminalized seditious libel and sought to suppress the activities of the Jeffersonian Republican political opposition. These laws also aimed to subdue the violent political partisanship that threatened the Federalists' vision of a stable society. But the Federalist party's unpopularity doomed it, and with Thomas Jefferson's electoral victory in 1800, the politics of civil liberty remained quiescent until 1861.

When the Civil War began, President Abraham Lincoln imposed a series of measures (e.g., suspending the writ of habeas corpus and barring all “treasonable correspondence” from the mails) aimed at silencing opponents of the war. Using a rationale that would often be employed in the next century, Lincoln insisted that restrictions on civil liberties were needed to address the perceived threat of disloyal activities.

World War I through World War II.

As these instances illustrate, attacks on civil liberties have usually coincided with periods of turmoil and insecurity. During World War I and its aftermath, civil liberties were subjected to greater restrictions than ever before in American history, typified by the repressive Espionage and Sedition Acts passed by Congress in 1917–1918 and emulated by many states. In the immediate postwar period, an economic depression and a surge of strikes threatened the economy, creating problems that many Americans blamed on radicals and aliens. The 1917 Bolshevik Revolution in Russia and increasing radicalism among certain immigrant groups in the United States spawned a Red Scare that led to the notorious Palmer raids of 1919–1920. These raids, led by President Woodrow Wilson's attorney general, A. Mitchell Palmer, and the young J. Edgar Hoover of the Justice Department's countersubversion division, resulted in the arrest of hundreds of suspected communists and radicals, and the deportation of 249 Russian‐born aliens. The American Civil Liberties Union (ACLU) was founded in 1920 to protest these violations of First Amendment protections.

In ruling on the constitutionality of the wartime espionage and sedition acts, the U.S. Supreme Court for the first time interpreted the First Amendment as a limitation on governmental power. Although the Court in two noteworthy 1919 cases, Schenck v. United States and Abrams v. United States, did not adopt a pro–civil liberties stance, these cases remain landmarks in the development of First Amendment doctrine, in part because of the eloquent dissent by Justice Oliver Wendell Holmes Jr. in the Abrams case.

As the Red Scare subsided, federal measures directed against dissenters faded as well. During the New Deal Era, as tyrannical governments assaulted individual freedom elsewhere in the world, the Supreme Court expanded the constitutional protection of civil liberties. Incorporating the Bill of Rights into the Fourteenth Amendment, the Court thereby applied these restraints to the states as well as to the federal government. The 1930s Supreme Court also downgraded the traditional primacy of property rights in the constitutional hierarchy. For instance, under then existing law, picketing by union members could be outlawed because of its harmful effect on private property. But in Senn v. Tile Layers Union (1937), a majority of the justices, recognizing the free speech aspect of this activity, prohibited any outright bans on picketing. Furthermore, by protecting the civil liberties of political dissidents, the Court encouraged the atmosphere of social experimentation central to the New Deal.

Even America's entry into World War II did not disrupt the Supreme Court's focus on enlarging the scope of individual liberty. The great exception, of course, involved the relocation and detention of 125,000 people of Japanese ancestry, most of whom were citizens of the United States. The Supreme Court did not seriously intervene. In Hirabayashi v. United States (1943), it upheld a curfew ordinance against Japanese‐Americans in Seattle on the grounds that wartime conditions sometimes justified measures that “place citizens of one ancestry in a different category from others.” In Korematsu v. United States (1944), the Court upheld the evacuation of Japanese‐Americans, but added, in Endo v. United States (1944), that the War Relocation Authority should attempt to separate “loyal” internees from “disloyal” ones, and release the former.

Cold‐War Era Retrenchment.

The early postwar era saw considerable retrenchment in the area of civil liberties. The conservative mood in the country brought a shift in political priorities from a concern for individual freedom to a desire for stability, order, and security. This mood found its way into the Supreme Court's civil‐liberties decisions. The notions of “judicial restraint” and “balancing individual and community rights” facilitated this retrenchment. Under this new approach, First Amendment liberties no longer had an absolute or preferred position in constitutional adjudication, but had to be balanced against other concerns, such as public safety.

The most difficult civil‐liberties questions of this period involved the Cold War crusade against domestic communism. With the nation in the grip of McCarthyism, the federal government used the 1940 Smith Act to prosecute Communist party officials. At the same time, loyalty programs directed at federal employees were implemented by both the Harry S. Truman and Dwight D. Eisenhower administrations. Congress also passed a series of anticommunist measures, including the McCarran Internal Security Act (1950) and the Communist Control Act (1954). In addition, the House Committee on Un‐American Activities embarked on its notorious investigation of persons suspected of a communist taint. For the most part, the Court supported this postwar anticommunist crusade. In Dennis v. United States (1951), for instance, the Court upheld the conviction of eleven Communist party officers under the Smith Act for advocating (rather than actively planning) the overthrow of the U.S. government; in so ruling, the Court weakened the “clear and present danger” test established in Schenck.

A similar retrenchment occurred in the Court's approach to a variety of other civil‐liberties questions. On the issue of picketing, for instance, the Court pulled back from its 1937 position that peaceful picketing represents a form of speech enjoying First Amendment protection. In International Brotherhood of Teamsters v. Hanke (1950), the Court held that picketing could also be a tool of economic coercion and restraint of trade, and hence could be regulated.

After this period of postwar retrenchment, however, the pendulum soon swung in the other direction. The rise of the civil rights movement and the anti–Vietnam War crusade of the 1960s brought a dramatic expansion of civil liberties that, in turn, helped fuel the era's political activism. In Shelton v. Tucker (1960), for instance, the Court struck down restrictions aimed at discouraging membership in the National Association for the Advancement of Colored People.

The Warren Court and Beyond.

A series of precedent‐breaking Supreme Court decisions under Chief Justice Earl Warren (1953–1969) created a powerful body of libertarian‐oriented constitutional law in the field of civil liberties. In Albertson v. Subversive Activities Control Board (1965), for example, the Court overturned the registration requirements aimed at the Communist party and, for the first time, the Warren Court consistently supported the First Amendment rights of those protesting U.S. involvement in a foreign war (Vietnam). In so doing, the justices recognized a social interest in free speech. More than simply an individual right, free speech was now seen as essential to the open debate needed for the maintenance of democracy. Long viewed as a threat to social stability, civil liberties were now seen as making a positive social contribution.

The Warren Court also reformed the law dealing with the civil liberties of criminal defendants. The Sixth Amendment guarantee of counsel was now interpreted to mean that the states must provide lawyers for indigent defendants. And in Miranda v. Arizona (1966), the Court ruled that the Fifth Amendment privilege against self‐incrimination required police to inform all suspects of their right to remain silent and to have an attorney present during interrogation.

The Warren Court's civil‐liberties activism also led it to carve out a new constitutional right of privacy. In Griswold v. Connecticut (1965), the Court used this privacy right to strike down state legislation prohibiting the use of contraceptives and the dispensing of birth control and family planning information to married couples.

This judicial activism was significantly tempered during the tenure of Chief Justice Warren Burger (1969–1986), named to that position by President Richard M. Nixon. The Burger Court shifted rightward in its treatment of some civil‐liberties issues. The Court's law‐and‐order stance, for instance, weakened certain criminal‐procedure protections, including the Miranda precedent. Yet most of the First Amendment protections and privacy rights articulated by the Warren Court were sustained. Indeed, it was the Burger Court, in Roe v. Wade (1973), that used the constitutional right of privacy to guarantee abortion rights.

The Court's commitment to First Amendment and privacy rights continued through the presidency of Ronald Reagan. During the 1980s and 1990s, however, calls for censorship came from political liberals advocating speech codes and advertising restrictions on “politically incorrect” speech. Perhaps the most heated and controversial of civil‐liberties issues in the 1990s were ones involving the First Amendment's establishment‐of‐religion clause, such as crèches on public property, secular books for parochial school students, and prayer at public events. Yet despite public pressures, the strict church‐state separation laid down by the Warren Court survived.

The end of the twentieth century brought one significant change in the area of civil liberties. Whereas dissent in wartime and national‐security concerns had once produced the disputes and conflicts, technology now became the First Amendment battleground, involving such issues as free speech on the Internet and world wide web, and the privacy of information relating to citizens' genetic profiles.

The federal government's response to the terrorist attacks of September 11, 2001 raised important civil‐liberties issues and stirred the ACLU and other organizations to vigorous protest. Hundreds of persons were detained without trial and the USA Patriot Act gave the government vast investigative powers, including secret surveillance of telephone and e‐mail communications, that had serious implications for citizens' constitutional rights. As the public and the government understandably focused on forestalling future terrorist attacks, the defense of civil liberties became more challenging, and more pressing, than ever before.
See also Anticommunism; Antiwar Movements; Church and State, Separation of; Communist Party—USA; Debs, Eugene V.; Genetics and Genetic Engineering; Goldman, Emma; Incarceration of Japanese Americans; McCarthy, Joseph; Sixties, The; Strikes and Industrial Conflict.

Bibliography

Zechariah Chafee , Free Speech in the United States, 1948.
O.K. Frankel , The Supreme Court and Civil Liberties, 1960.
Leonard Levy , Legacy of Suppression: Freedom of Speech and Press in Early America, 1960.
Barnard Bailyn , The Ideological Origins of the American Revolution, 1967.
Leo Pfeffer , Church, State and Freedom, 1967.
Paul L. Murphy , World War I and the Origin of Civil Liberties in the United States, 1979.
Nat Hentoff , The First Freedom: The Tumultuous History of Free Speech in America, 1980.
John Stevens , Shaping the First Amendment, 1982.
Kermit L. Hall, ed., Civil Liberties in American History, 1987.

Patrick M. Garry

; Updated by

Paul S. Boyer