Civil Liberties and War. From the outset of the new American government under the Articles of Confederation, the need for striking a delicate balance between authority and liberty was essential. Fear of powerful central control was stated clearly regarding the English king in the U.S. Declaration of Independence. It remained an ongoing concern under the Constitution. Indeed, a Bill of Rights limiting the new central government was adopted, which from its First Amendment assumed that the main enemy of liberty was Congress, which was admonished to “make no law abridging freedom of speech and of the press.” Further, the amendment went on to protect freedom of assembly and the right to petition, along with its initial statement of religious freedom.

The very nature of republican government, James Madison stated in 1792, required that “the censorial power be in the people over the government, and not in the government over the people.” Actual war intensified the issue, and the early Federalists felt its dangers required national security legislation. Hence the Alien and Sedition Acts, which sought to sharply curtail freedom of speech and press as long as the Undeclared Naval War with France of 1798–1800 was underway. With all three branches of the national government controlled by the Federalists, the libertarian Jeffersonians found their voices silenced, as most Anti‐Federalist editors were jailed. This produced negative backlash and Jefferson's election to the presidency in 1800. It also resulted in a movement headed by political writers to define more precisely the permissible limits of free speech and press. The War of 1812 with England, highly unpopular in Federalist New England, not only elicited bitter criticism of Republican president James Madison but produced discussions by some Federalists at the Hartford Convention regarding secession. Madison prosecuted none, but deplored many.

The Mexican War of the 1840s carried with it so many subtle moral and political issues that formal legalistic civil liberties issues took a backseat. Congressmen, including Abraham Lincoln, worried aloud how slavery could be further curtailed so as not to destroy the union. Henry David Thoreau denounced the war and refused to pay taxes to support it, but also called for civil disobedience and noncompliance with wartime actions that might result in obtaining more slave territory. Gen. Winfield Scott appeased some critics by seeking to protect Mexican property rights by setting up military commissions that would develop a form of due process of law for citizens subjected to unruly behavior by occupying U.S. soldiers. Even though this did not restrain the U.S. Army, it brought a new technique of controlling the more extreme abuses of the military in its dealing with civilian populations.

The Civil War saw important crises in civil liberties developed ultimately out of the White House as President Abraham Lincoln claimed a body of Presidential War Powers which had the force of law and which frequently sublimated civil liberties to national security. This sprang from presidential initiative, but was then followed by congressional approval or acquiescence. Lincoln consolidated state militias into one force, summoned volunteers for active service, increased the size of the army and navy without legislative authority, paid money from the Treasury without an appropriation, and closed the Post Office to “treasonable correspondence.”

In addition, Lincoln and his generals in the field were not reluctant to use censorship to protect wartime secrecy considered necessary to assure victory. Translated informally, this led to various orders for control of the press and curtailment of disloyal utterances. The army was to control reporters and take action against incorrect reports and inadvertent leaking of strategic and military secrets. Feeling that more control was needed, an effort was made to exclude from the mails printed material that was calculated to interfere with the war policy. Dissenters were threatened with arrest and trial before a court‐martial.

Congress's conscription legislation (1863, 1864) penalized those who counseled resistance to the draft. This followed its 1862 Treason Act, which was never held to cover the expression of disloyal sentiments. But through the temporary wartime suspension of the writ of habeas corpus, the government found ways of striking at those who might interfere with the president's duty to ensure that the laws were faithfully executed. These actions, plus the use of martial law against critical civilians, constituted a kind of prior restraint and drew strong negative public reaction.

It was not until the war was over that the Supreme Court ruled on such restrictions of constitutional liberties. In an 1866 case, Ex Parte Milligan, the Court struck hard at the suspension of the writ of habeas corpus and further proclaimed that martial law could not be justified by a threatened invasion.

Lincoln's pattern was repeated in World War I, when President Woodrow Wilson initially closed German wireless stations and later created a host of administrative boards and agencies to monitor war criticism. Yet the Civil War experience had not provided the federal government with the kind of legal weapons, such as statutory instruments of suppression, that it needed to control public discourse on a massive scale in wartime. With the formal declaration of war in April 1917, Congress passed an Espionage Act, and a Trading with the Enemies Act, which created a Censorship Board to coordinate and make recommendations about censorship. It condoned censorship of mail or any other kind of communication with foreign countries and gave the Postmaster General almost absolute censorship power over the American foreign‐language press. Included also was a Sedition Act, 1918, which sought to repress anarchists, socialists, pacifists, agrarian radicals, and especially the Non‐Partisan League, which had taken over North Dakota at the time. The Alien Act of 1918 empowered the government to deport “any alien who, at the time of entering the United States was found to have been a member of an anarchist organization.”

Other forms of war restriction raised civil liberties concerns. The Selective Service Act (1917) elicited legal challenge. In the 1918 Selective Draft Cases, a unanimous Supreme Court found the constitutional authority to impose compulsory military service in Congress's power to declare war and to “raise and support armies.”

Critics complained that much of this legislation was a threat to freedom. But except for conscription, the Supreme Court did not pass judgment on the constitutionality of any of it pending the end of the war itself. In the 1919 Schenck and Abrams cases, wartime prosecutions were upheld, much to the distress of a number of loyal Americans who feared this was laying the basis for a surveillance state. From these decisions arose the “clear and present danger” test, and also the American Civil Liberties Union in 1920, to preserve the Bill of Rights.

But there were those who found the strong new federal government a blessing in disguise. Private power groups, which had greatly distrusted burgeoning regulatory authority in the economic field, now seemed pleased to accept such federal authority when applied to stifling the ideas and expression of their critics. In fact, they were delighted to have the national government play this role since federal authorities could rationalize such actions as essential to victory in a war to preserve international liberal capitalism without incurring the criticism and stigma that private groups would have elicited had they attempted to crush their enemies in such a fashion.

This new role of the state, however, produced strong negative reactions. It seemed to be progressivism gone wrong. Its critics rejected the war emergency rationalization as a dubious justification for such a radical departure in governmental policy. Critics particularly questioned the grounds for giving new federal agencies—from the Committee on Public Information and the Federal Bureau of Investigation to the newly swollen Justice and Post Office Departments—discretionary power to limit Americans' use of their individual freedom. Further, they deplored the absence of legal remedies for innocent citizens whose rights were violated by the excessive zeal of agents of these organizations.

Civil liberties in World War II took a different form. President Franklin D. Roosevelt had been in the Wilson government, and vowed that should war come, his administration would not repeat the repression of the World War I years. But Roosevelt was also aware that domestic groups and individuals had ties with Germany and the Axis powers, and in the late 1930s he alerted the FBI to begin domestic surveillance in the name of national security and the avoidance of sabotage. Meanwhile, conservatives in Congress set up the Dies Committee to investigate the loyalty of the Roosevelt administration. The result was that the World War I Espionage Act was reenacted, and Congress also passed the Smith Alien Registration Act (1940), instructing the government to search out and expose disloyal Americans, and to begin the practice of denaturalizing citizens who expressed sympathy with Nazi Germany. Attorney General Francis Biddle disagreed with both policies and took cases to the Supreme Court (Hartzel v. U.S., 1944; Baumgartner v. U.S., 1944) sharply curtailing both measures. The previous year, 1943, had seen the Court reverse a 1940 ruling by granting First Amendment protection to Jehovah's Witness children freeing them from compulsory flag salute policies on the ground that the state laws violated the free exercise of religion clause. The wartime period also saw a rare use of the treason clause (Haupt v. U.S., 1947), with the government facilitating several treason prosecutions of U.S. nationals for allegedly assisting the Germans and the Japanese during the war.

The most flagrant wartime violation of civil liberties in American history involved the Japanese Americans living on the West Coast, the majority of whom—70,000 of 112,000—were American citizens. Rounded up by the military after Pearl Harbor, they were first subjected to a curfew, then banned from coastal areas, and subsequently shipped to inland detention camps, known as relocation centers. In the process they were punished without indictment or trial, and since this action was called for by the military in the name of national security, the Supreme Court in the Japanese American Internment Cases hesitated to interfere. In the Hirabayshi case (1943), the Court ruled the curfew constitutional on the excuse that it was wartime. A year later, the Court did uphold the right of loyal Americans to leave the camps through a writ of habeas corpus. It was never willing to examine the constitutionality of the relocation program itself, thereby leaving future wartime restraint unresolved.

The war in Korea was technically not a war, but a United Nations “police action” without a formal declaration. Coming during the McCarthy era, when the Truman administration was being criticized for being “soft on communism,” little was done to curtail negative expression for fear of right‐wing backlash. However, in the Dennis case (1951), the Supreme Court sustained the Smith Act, jailing and silencing leaders of the American Communist Party with an extremely narrow interpretation of the clear and present danger test.

The Vietnam War was a sharp contrast. Again, there was no formal war declaration. But a half million American troops eventually fought with meager success and mounting domestic protest, particularly from student organizations such as the Students for a Democratic Society, and angered civil rights leaders, questioning national priorities. Some criminal prosecutions and conspiracy trials were launched against war resisters, but with limited success. The Supreme Court was reluctant to curtail such expression. It expanded the right of conscientious objection. It struck down the Nixon administration's attempt to halt the publication of the Pentagon Papers (New York Times v. U.S., 1971) a critical study of the origins and early history of the Vietnam conflict. Significantly, it was in this period that the Court finally clarified the true permissible limits of freedom of expression. In the landmark case of Brandenburg v. Ohio (1969), a unanimous Court held that the government in order to limit free expression was required to prove that its danger was real and immediate, not imaginary. Even threatening speech was now guaranteed, said the Court, unless the state could prove that the advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.

Some Americans blamed the defeat in Vietnam on the war critics, who critics said should have been silenced, or at the least denied access to certain information. This questionable view was embraced by the military and applied during the Reagan and Bush administrations, especially regarding paramilitary operations in Central America and the Caribbean, and particularly during the Persian Gulf War of 1991. Tight control was placed on “strategic” in formation, and also on reporters attempting to cover the hostilities. Information was to come only through military briefings. Later information, available following investigations of the health of military personnel and civilians, raised questions about such limited briefings and denial of access to contemporary data that the public had a right to know.
[See also Conscientious Objection; Draft Resistance and Evasion; Espionage and Sedition Acts of World War I; Habeas Corpus Act; Martial Law; Surveillance, Domestic; Treason; Vietnam Antiwar Movement.]

Bibliography

Paul L. Murphy , The Constitution in Crisis Times, 1918–1969, 1972.
Paul L. Murphy , World War I and the Origins of Civil Liberties in the United States, 1979.
Leonard W. Levy , Emergency of a Free Press, 1985.
Harry Kalven, Jr. , A Worthy Tradition: Freedom of Speech in America, 1988.
James G. Randall , Constitutional Problems Under Lincoln, 1997.
David M. Rabban , Free Speech in Its Forgotten Years, 1998.

Paul L. Murphy

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

Paul S. Boyer

CIVIL LIBERTIES AND PATRIOTISM

The Challenge of War

Historically, civil liberties and war have proved incompatible. Abraham Lincoln suspended the constitutional requirement that defendants be charged with crimes before imprisonment during the Civil War; Woodrow Wilson restricted free speech and open political activity during the First World War. Civil liberties during World War II were also restricted. While the government did significantly restrict freedom of speech, freedom of movement, and freedom of political association during the decade, federal officials were reluctant to engage in wholesale suspension of civil liberties Such a suspension would evoke political opposition contrary to the efficiency of the war effort and would make the distinction between the United States and its enemies—a distinction crucial to the propaganda war—too blurry. Two Supreme Court cases regarding the individual's ability to refrain from overt displays of patriotism addressed this limit on wartime coercion. In the Minersville School District Y. Gobitis case of 1940 the Supreme Court held that the government could demand individual participation in civic ritual designed to instill patriotism and a sense of unity; in the West Virginia State Board of Education v. Barnette case of 1943 the Supreme Court set limits to the degree to which the government could demand such participation.

A Wartime Ritual

The Pledge of Allegiance, first published in 1893, was widely adopted during and after World War I to evoke a spirit of national unity. Most Americans complied with the recitation of the pledge, some enthusiastically, many without feeling one way or another. By the 1920s it had become a simple school ritual (albeit enforced in many states by law) for most Americans. For Jehovah's Witnesses, however, the pledge presented a violation of their religious faith.

False Idols

Jehovah's Witnesses were an evangelical sect that numbered about 115,000 in 1942. They believed that this world was under the domination of Satan and that churches, governments, and other social institutions were under his control. They asserted that the Bible, in Exod. 20: 3-5, forbade them from saluting any flag since this would be a violation of the law of God. The particular passage upon which the Jehovah's Witnesses relied states that "You shall not have other gods beside me. You shall not carve idols for yourselves in the shape of anything in the sky above or on the earth below or in the waters beneath the earth; you shall not bow down before them or worship them." For Jehovah's Witnesses, school requirements that their children participate in pledge requirements violated their right to freedom of religion.

Not Saying the Pledge

In 1935 the Minersville, Pennsylvania, public school expelled twelve-year-old Lillian Gobitis and her ten-year-old brother, William, for failure to participate in the state-mandated Pledge of Allegiance to the United States flag. The children were not disruptive in class but stood in silence while their classmates recited the pledge. Both were the children of Jehovah's Witnesses.

Appeal

When the children were expelled from school, their parents were forced to enroll them in private schools at their own expense. Their father, on their behalf and on behalf of others similarly situated, brought suit challenging the expulsion. Both the U.S. District Court in Pennsylvania and the Circuit Court of Appeals ruled against the school district and upheld the children's right to refuse to engage in the flag-salute ceremony. Since these decisions ran counter to several cases previously ruled on by the Supreme Court, the court agreed to hear the case and to reconsider the entire situation.

The Constitutional Issue

The Supreme Court quickly dispensed with the Jehovah's Witnesses' argument that the expulsions violated their freedom of religion, agreeing with Justice Felix Frankfurter that there was no "absolute" claim to this right. Instead, the Court considered the degree of coercion necessary to advance national unity and to safeguard individual rights. They began, in other words, by assuming that a certain amount of public ritual, backed by coercion, was necessary for the smooth running of society—in peace or wartime. As Frankfurter put it, the precise issue for the court to decide was "whether the legislatures of the various states and the authorities in a thousand counties and school districts of this country are barred from determining the appropriateness of various means to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious."

Brainwashing

Complicating the Gobitis decision was the argument of the school district that the Jehovah's Witnesses, via their near absolute rejection of society, were fundamentally brainwashing their children. The school district argued that it was the obligation of education to liberate children from such tyranny, an argument loaded with the heated politics of the era, a time when Germany was training its Hitler Youth for war. The school district argued that the pledge was part of a larger program of civic education for the children, one vital in maintaining social cohesion. The Court substantially agreed, remarking in their final decision that what the school authorities were really asserting in forcing the Gobitis children to say the pledge was a right to "awaken in the child's mind considerations as to the significance of the flag contrary to those implanted by the parent."

The Interest of the State

On 3 June 1940 the Court reversed the rulings of the lower federal courts and held that the Pennsylvania legislature had the right to include the Pledge of Allegiance as part of its overall introduction of the young to patriotic principles. The Court felt that the legitimate interests of the state legislature in mandating the Pledge of Allegiance outweighed an absolute right of a child in such a situation to refuse. The Court stated that "But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents, is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of other children which would themselves weaken the effect of the exercise."

Results

In essence the court was refusing to pass judgment on the content of school education, opening up the possibility, all too real at a time when Nazi ideology was forced on German students, that the schools might become an agency for ideological instruction. The Court, however, felt that parents exercised greater influence over their children than did the state. As long as the parents' right to contradict the instruction their children received by the state remained inviolate, mass public indoctrination of students was unlikely. By agreeing with the state of Pennsylvania that some sort of civic education was necessary to form a cohesive society and at the same time refusing to specify the content of that instruction, the Court set an important precedent for wartime legislation designed to secure the general good—sometimes at individual expense.

Spirit of Americanism

The Court's confidence that ideological indoctrination would be unlikely in American schools was soon tested. Despite the Gobitis decision, Jehovah's Witnesses continued to refuse to pledge allegiance to the flag. Physical attacks on Jehovah's Witnesses for suspected disloyalty escalated, especially after Pearl Harbor. Hard on the heels of the Gobitis decision, the West Virginia legislature changed its laws to require that all schools conduct courses of instruction in history and civics. The purpose of the course of instruction was for "eaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the organization and machinery of government." On 9 January 1942 the West Virginia Board of Education also adopted a resolution which contained portions of the Supreme Court's Gobitis decision and which ordered that the salute to the flag would become "a regular part of the program of activities in the public schools," in that all teachers and pupils would be "required to participate in the salute honoring the nation represented by the flag; provided, however, that refusal to salute the flag be regarded as an act of insubordination, and shall be dealt with accordingly."

Punishment

The West Virginia legislature provided that children who refused to salute the flag in the prescribed manner would be expelled and that the expulsions would continue until compliance was achieved. In the meantime the child was to be held unlawfully absent from school, and proceedings could be instituted against the child in court to label him or her a delinquent. Furthermore, the parents were liable to be prosecuted for the delinquency, and, if convicted, they could be subject to a fine of up to fifty dollars and/or a jail term not to exceed thirty days.

The Witnesses Challenge

Once again the Jehovah's Witnesses challenged the law. Their argument repeated that they considered the flag to be an "image" which they were forbidden by God to worship or salute. They argued that their children were unduly punished by the legislation, noting that officials threatened to send expelled children to reformatories constructed to house juveniles convicted of serious crimes. The Federal District Court in West Virginia refused to restrain the West Virginia Board of Education from punishing the children of Waiter Barnette, and on that basis he appealed to the U.S Supreme Court and asked them to overrule their 1940 Gobitis decision.

Protected Speech

Less than three years after Gobi fis, the Supreme Court thus once again considered the relationship between civil rights and the government's capacity to inculcate a sense of national unity. Even the American Legion averred that the pledge should be voluntary This time the Supreme Court agreed, overturning Gobitis and invalidating the West Virginia law. Once again, however, they did not rule on the issue of whether the pledge violated the right of the individual to practice religion freely. Instead, the Court considered the Barnette case from the standpoint of freedom of speech, arguing that the refusal to participate in flag pledges constituted a form of protected speech.

Reversal

Perhaps benefiting from the sharp wartime contrast between democracy and fascism, the Supreme Court saw in the refusal to participate in mandated civic ritual a fundamental component of democracy. "We set up government by consent of the governed," reasoned the Court, "and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority." The Court found the mandated pledge inverted the reason for free speech, twisting the "individual's right to speak his own mind" into something that would "compel him to utter what was not in his mind." The Court did not reverse its position that public rituals were important in cultivating social unity, but it acknowledged that not all local, state, and federal authorities would scrupulously respect individuals who did not care to participate in such rituals: "We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to our Constitution to reserve from all official control." In the midst of a war that saw civil liberties compromised by the Smith Act and the internments of Japanese Americans, the Supreme Court was setting limits to coercive authority and upholding the right of dissent.

Sources:

Kermit L. Hall, ed., The Oxford Companion to the Supreme Court (New York: Oxford University Press, 1992);

Merlin Owen Newton, Armed With the Constitution: Jehovah's Witnesses in Alabama and the U.S. Supreme Court (Tuscaloosa: University of Alabama Press, 1994).

Civil Liberties

BIBLIOGRAPHY

Civil liberties are individual freedoms intended to protect citizens from government. These freedoms include, but are not limited to, equal protection under the law, freedom of speech and association, religious freedom, and the right to a fair hearing or trial when accused of committing a crime. While many tend to use the terms civil liberties and civil rights interchangeably, civil liberties can be distinguished from civil rights in some fundamental ways. The primary distinction is that civil rights are protections by government against discrimination on the basis of individual characteristics like race, ethnicity, gender, or disability status, whereas civil liberties are most appropriately thought of as protections from government encroachment. Thus civil rights tend to require government action, while civil liberties are typically best served by government inaction.

Civil liberties are typically enumerated and guaranteed via the constitution of a nation-state but can also be guaranteed by other legal documents and conventions. One example of an enumeration of civil liberties that is not contained in a state’s constitution is the International Covenant on Civil and Political Rights (ICCPR), a United Nations treaty created in 1966 and designed to protect civil rights and liberties globally. The ICCPR obliges nations who ratified it to protect individual liberties like freedom of speech, the right to a fair trial, and equal protection under the law via appropriate legislative, judicial, and administrative measures. Another example is the European Convention on Human Rights (ECHR), adopted by the Council of Europe in 1950. In addition to enumerating civil liberties and many civil and human rights, the ECHR established the European Court of Human Rights to adjudicate cases brought by individuals and groups who feel their rights under the ECHR were violated.

The United States is an example of a nation with constitutionally guaranteed civil liberties. In the U.S. Constitution, the most important protections for citizens against government imposition are set forth in the Bill of Rights, which are the first ten amendments to the Constitution. Additionally, in its capacity as the arbiter of disputes between government and the citizenry, the federal judiciary of the United States has slowly expanded the coverage of the Bill of Rights to include protections from state and local governments. This process is generally referred to as the nationalization or incorporation of the Bill of Rights, and occurred via expanded interpretation of the due process clause and the equal protection clause of the Fourteenth Amendment of the U.S. Constitution.

Though many governments profess civil liberties protections through various legal documents and conventions, it is not uncommon for these same governments to violate these protections and infringe upon the individual freedoms of their citizens, especially in times of crisis. For example, when national security concerns conflict with an individual’s right to privacy or protection from unlawful imprisonment, many governments privilege national security over civil liberties and are thus more inclined to commit violations. Because of some governments’ proclivity to infringe upon individual liberties, nonprofit organizations, such as Amnesty International, Human Rights Watch, and the American Civil Liberties Union, have been established with the missions of protecting and extending individuals’ rights and liberties and holding governments accountable for their encroachments.

SEE ALSO Bill of Rights, U.S.; Citizenship; Civil Rights; Constitution, U.S.; Constitutions; Due Process; Equal Protection; Freedom; Government; Human Rights; Individualism; Liberty; National Security; Nation-State; Public Rights; United Nations

BIBLIOGRAPHY

Carlson, Scott N., and Gregory Gisvold. 2003. Practical Guide to the International Covenant on Civil and Political Rights. Ardsley, NY: Transnational.

Feldman, David. 2002. Civil Liberties and Human Rights in England and Wales. 2nd ed. Oxford and New York: Oxford University Press.

Foster, Steven. 2006. The Judiciary, Civil Liberties, and Human Rights. Edinburgh, U.K.: Edinburgh University Press.

Irons, Peter H. 2005. Cases and Controversies: Civil Rights and Liberties in Context. Upper Saddle River, NJ: Pearson Prentice Hall.

Kernell, Samuel, and Gary C. Jacobson. 2006. The Logic of American Politics. 3rd ed. Washington, DC: CQ.

Monique L. Lyle

civ·il lib·er·ty • n. the state of being subject only to laws established for the good of the community, esp. with regard to freedom of action and speech. ∎  (civil liberties) individual rights protected by law from unjust governmental or other interference. DERIVATIVES: civ·il lib·er·tar·i·an n.

civil liberties Basic rights that every citizen possesses and governments must respect in a democracy. In some countries, courts ensure freedom from government control or restraint, except as the public good may require. In the USA, civil liberties are guaranteed by a Bill of Rights. Similar constitutional legislation is being prepared in the UK. See also civil rights

Civil Liberties See History of the Court: Rights Consciousness in Contemporary Society.

civil liberty see liberty .

civil liberties See CIVIL RIGHTS.