Civil Liberties

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CIVIL LIBERTIES

william blackstone described civil liberty as "the great end of all human society and government … that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws." As a matter of law, civil liberties are usually claims of right that a citizen may assert against the state. In the United States the term "civil liberties" is often used in a narrower sense to refer to religious liberty, personal privacy, and the right to due process of law, or to other limitations on the power of the state to restrict individual freedom of action. In this sense, civil liberties may be distinguished from rights to equality (sometimes called "civil rights"), although the latter have increasingly been recognized as important elements of individual freedom because they permit participation in society without regard to race, religion, sex, or other characteristics unrelated to individual capacity.

The concept of civil liberties is a logical corollary to the ideas of limited government and rule of law. When government acts arbitrarily, it infringes civil liberty; the rule of law combats and confines these excesses of power. The concept "government of laws, not of men" reflects this idea as does the vision of justice as fairness.

Although civil liberties are usually associated in practice with democratic forms of government, liberty and democracy are distinct concepts. An authoritarian government structure may recognize certain limits on the capacity of the state to interfere with the autonomy of the individual. Correspondingly, calling a state democratic does not tell us about the extent to which it recognizes civil liberty. Thus, "civil liberties" does not refer to a particular form of political structure but to the relationship between the individual and the state, however the state may be organized. But civil liberties do presuppose order. As Chief Justice charles evans hughes said in cox v. new hampshire (1941), "Civil liberties imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses."

In the final analysis, civil liberties are based on the integrity and dignity of the individual. This idea was expressed by George C. Marshall, who was chief of staff to the American army in world war ii and later served as secretary of state: "We believe that human beings have … rights that may not be given or taken away. They include the right of every individual to develop his mind and his soul in the ways of his own choice, free of fear and coercion—provided only that he does not interfere with the rights of others."

There are two principal justifications for preferring individual liberties to the interests of the general community—justice and self-interest. At the very least, justice requires norms by which persons in authority treat those within their power fairly and evenly. Self-interest suggests that our own rights are secure only if the rights of others are protected.

Because these two justifications for civil liberties are abstractions to most people, they are often subordinated to more immediate concerns of the state or the majority. In America, even administrations relatively friendly to civil liberty have perpetrated some of the worst violations. The administration of franklin d. roosevelt interned Japanese Americans during World War II. abraham lincoln suspended the right of habeas corpus. And as Leonard W. Levy has reminded us, thomas jefferson was far more of a libertarian as a private citizen than when he was in power. Nevertheless, civil liberties have been more broadly defined and fully respected in the United States than in other nations.

The roots of American civil liberties can be traced to ancient times. The city-state of Athens made a lasting contribution to civil liberty. In the sixth century b. c. , solon, the magistrate of athens, produced a constitution that, while flawed, gave the poor a voice in the election of magistrates and the right to call public officials to account. solon is also credited with first expressing the idea of the rule of law. but athens knew no limits on the right of the majority to adopt any law it chose, and there was no concept of individual rights against the state. greek philosophers introduced the idea of "natural law" and the derivative concept of equality; all athenians (except slaves) were equal citizens, for all possessed reason and owed a common duty to natural law.

The Romans also contributed to civil liberties, first through a rudimentary separation of powers of government and later by the further development of natural law. Justinian's Institutes recites, "Justice is the fixed and constant purpose that gives every man his due." Nevertheless, the Roman emperors were autocratic in practice; there were no enforceable rights against the state, which practiced censorship, restricted travel, and coerced religion.

In the Middle Ages there was little manifestation of civil liberties. But the idea of a pure natural law was carried forward in Augustine's City of God. On the secular side, the contract between feudal lords and their vassals established reciprocal rights and responsibilities whose interpretation was, in some places, decided by a body of the vassal's peers.

Among English antecedents of civil liberties, the starting point is magna carta (1215), the first written instrument that exacted from a monarch rules he was bound to obey. Although this document reflected the attempt of barons to secure feudal privileges, basic liberties developed from it—among them the security of private property, the security of the person, the right to judgment by one's peers, the right to seek redress of grievances from the sovereign, and the concept of due process of law. Above all, as Winston Churchill said, Magna Carta "justifies the respect in which men have held it" because it tells us "there is a law above the king."

Another great charter of English liberty was the 1628 petition of right, a statute that asserted the freedom of the people from unconsented taxation and arbitrary imprisonment. The habeas corpus act of 1679 was another major document of English liberty. The bill of rights of 1698 which also influenced American constitutional law, declared that parliamentary elections ought to be free and that Parliament's debates ought not to be questioned in any other place, and it condemned perversions of criminal justice by the last Stuart kings, including excessive bail and cruel and unusual punishments.

The experience of the American colonies was important to the development of civil liberties in the United States. The colonial charters set up local governments that built upon English institutions, and the colonists jealously opposed any infringements upon their rights. The virginia charter of 1606 reserved to the inhabitants "all liberties, Franchises and Immunities … as if they had been abiding and born, within this our Realm of England."

The massachusetts body of liberties of 1641 expressed in detail a range of fundamental rights later to be adopted in the American bill of rights. Rhode Island was the first colony to recognize religious liberty, largely through the efforts of its founder, roger williams. The Puritans banished Williams from Massachusetts in 1635 for unorthodoxy, and he settled in Providence. There the plantation agreement of 1640 protected "liberty of Conscience," and this doctrine appeared in the Colony's charter in 1663. The Pennsylvania charter and those of other colonies were also influential in protecting individual rights. zenger ' scase (1735), in which a jury acquitted a New York publisher on a charge of seditious libel, was a milestone in securing the freedom of the press.

By the time of the American Revolution, the colonists were familiar with the fundamental concepts of civil liberty that would be included in the Constitution and Bill of Rights. Unlike the contemporary French experience, where the promise of the Declaration of the Rights of Man went largely unfulfilled for want of institutional safeguards, the American Constitution of 1787 embodied a republican government elected by broad suffrage that was reinforced by judicial review and by checks and balances among the three branches of government.

The original Constitution, a document devoted mainly to structure and the allocation of powers among the branches of the national government, contains some explicit safeguards for civil liberty. It provides that the "privilege" of habeas corpus, which requires a judge to release an imprisoned person unless he is being lawfully detained, may not be "suspended." The ex post facto and bill of attainder clauses require the Congress to act prospectively and by general rule. Article III guarantees a jury trial in all federal criminal cases, defines treason narrowly, and imposes evidentiary requirements to assure that this most political of crimes will not be lightly charged.

Apart from the omission of a bill of rights, which was soon rectified, the Constitution's principal deficiency from a civil liberties standpoint was its countenance of slavery. Without mentioning the term, in several clauses it recognized the legality of that pernicious institution. dred scott v. sandford (1857) cemented the legally inferior status of blacks and contributed to civil war by ruling that slaves or the descendants of slaves could not become citizens of the United States. The emancipation proclamation (1863) and the thirteenth amendment (1865) freed the slaves, but the reaction that occurred after the end of reconstruction in 1877 and decisions such as the civil rights cases (1883) and plessy v. ferguson (1896) undercut their purposes. The movement toward civil equality did not gain new momentum until the middle of the twentieth century.

The civil liberties of Americans are embodied primarily in the bill of rights (1791), the first ten amendments to the Constitution. james madison proposed the amendments after the debates on ratification of the constitution revealed wide public demand for additional protection of individual rights. The first amendment guarantees the freedoms of speech, press, assembly, petition, and religious exercise, as well as the separation of church and state. The fourth amendment protects the privacy and security of home, person, and belongings and prohibits unreasonable searches and seizures. The Fifth, Sixth, and Eighth Amendments extend constitutional protection to the criminal process, including the right to due process of law, trial by jury, confrontation, of hostile witnesses, assistance of legal counsel, the right against self-incrimination, and protection against double jeopardy and cruel and unusual punishment. The tenth amendment reserves to the states and to the people powers not delegated to the federal government. Although the Bill of Rights was originally applicable only to the federal government, most of its provisions now have been applied to the states through the due process clause of the fourteenth amendment. (See incorporation doctrine.) The amendment also provides a generalized guarantee of equal protection of the laws as well as a virtually unenforced right to certain privileges and immunities. Finally, the fifteenth amendment and nineteenth amendment guarantee voting rights regardless of race or sex.

A practical understanding of civil liberties in the United States may be aided by illustrations of three main dimensions of the subject: freedom of speech, due process, and equal protection.

The First Amendment provides that "Congress shall make no law … abridging the freedom of speech, or of the press." The almost universal primacy given free speech as a "civil liberty" rests on several important values: the importance of freedom of speech for self-government in a democracy, its utility in probing for truth, its role in helping to check arbitrary government power, and its capacity to permit personal fulfillment of those who would express and receive ideas and feelings, especially unpopular ones, without fear of reprisal.

Consistent with the First Amendment, even revolutionary speech that is not "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" is immunized from government control. (See incitement.) Similarly, highly offensive political speech and defamations of public officials and public figures that are not intentionally or recklessly false are protected. (See libel and the first amendment.) Because effective advocacy is enhanced by group membership, the First Amendment has also been interpreted to protect freedom of association from interference, absent a compelling state justification. The First Amendment provides particularly strong protection against prior restraint—injunctions or other means of preventing speech from ever being uttered or published.

Freedom of speech is not absolute. In addition to the limits just noted, obscenity, child pornography, and fighting words likely to provoke physical attacks are unprotected. All forms of speech, furthermore, are subject to reasonable time, place, and manner restrictions. The amendment has been interpreted to afford a lesser degree of protection to speech that is sexually explicit (although not obscene), to commercial speech, to symbolic speech such as nonverbal displays intended to convey messages, and to demonstrations (for example, picketing) that combine speech and action.

The concept of fair procedure, embodied in the due process clauses of the Fifth and Fourteenth Amendments, has been viewed as an element of civil liberties at least since Magna Carta, when the king was limited by "the law of the land." In principle, the guarantee of due process prevents government from imposing sanctions against individuals without sufficiently fair judicial or administrative procedures. Justice louis d. brandeis said: "In the development of our liberty insistence upon procedural regularity has been a large factor." Violations of this constitutional guarantee cover a wide range of official misconduct in the criminal process, from lynchings, to coerced confessions, to criminal convictions of uncounseled defendants, to interrogation of suspects without cautionary warnings. Beyond criminal cases, due process principles have been applied to protect juveniles accused of delinquency and individuals whose government jobs or benefits have been terminated. Whatever the context, civil liberty requires that individual interests of liberty and property not be sacrificed without a process that determines facts and liability at hearings that are fairly established and conducted. (See procedural due process of law, criminal; procedural due process of law, civil).

The guarantee of equal protection is interpreted to forbid government, and in some cases private entities, to discriminate among persons on arbitrary grounds. The central purpose of the equal protection clause was to admit to civil equality the recently freed black slaves, and leading judicial decisions such as shelley v. kraemer (1948) and brown v. board of education (1954) and legislative enactments such as the civil rights acts of 1866 and 1964 were particularly addressed to the condition of racial minorities. The constitutional guarantee of equality has been extended to women and to discrete and insularminorities—ethnic and religious groups, aliens, and children of unwed parents—whom the Supreme Court has deemed unable to protect their interests through the political process. In recent years, the Court has rejected attempts to broaden this category of specially protected groups. It has denied special protection to homosexuals, older persons, and the mentally retarded. The Court has also expressed the antidiscrimination ideal in holding that it is unconstitutional for a legislative districting system to accord votes in some districts significantly greater weight than votes in others.

A vexing equality issue is whether benign classifications of racial minorities or women are consistent with civil liberty on the theory that they prefer groups that historically were, and often still are, discriminated against. Against the background of slavery and legally enforced segregation, the Supreme Court has upheld affirmative action programs for blacks that prefer them for employment and university admissions on the ground that a wholly "color blind" system would "render illusory the promise" of Brown v. Board of Education. It has also upheld some forms of preference for other minorities and for women. There is deep division over these programs. It is often charged that they are themselves an obnoxious use of racial or sexual classifications. Justice harry a. blackmun responded to these contentions in regents of university of california v. bakke (1978) by stating that "[i]n order to get beyond racism, we must first take account of race.… We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy."

Some liberties in the United States are traceable to a natural law tradition that long antedated the Constitution and are only indirectly reflected in its text. In the American experience, for example, the virginia declaration of rights aserted that "all men are by nature equally free and independent, and have certain inherent rights … namely, the enjoyment of life and liberty, with the means of acquiring and possessing property." This sentiment was reflected in the declaration of independence, which spoke of "inalienable rights," and in the Constitution itself, which embodied these principles. In calder v. bull (1798) Justice samuel chase expressed his view that natural rights "form the very nature of our free Republican governments." Over the years the Supreme Court has recognized a number of rights not explicitly grounded in the constitutional text, including, for a season, freedom of contract, and, in recent years, the right to travel, and the freedom of association. The Court's most celebrated recent decisions of this kind have recognized a series of rights that reflect values of personal privacy and autonomy. These include the rights to marriage and to birth control, to family relationships and to abortion. These liberties are fundamental conditions of the ability of a person to master his or her life. (See freedom of intimate association.)

The Supreme Court's decisions enunciating some of these rights have been challenged as unrooted in the original intention of the Framers and therefore subjective and illegitimate. But the Constitution was not frozen in time. Chief Justice john marshall said in mcculloch v. maryland (1819) for a unanimous Court that it is an instrument "intended to endure for ages to come and, consequently, to be adapted to the various crises of human affairs." In the twentieth century, Justice benjamin n. cardozo agreed: "The great generalities of the Constitution have a content and a significance that vary from age to age." Further, the ninth amendment contemplated that the provisions of the Bill of Rights explicitly safeguarding liberty were not meant to be exhaustive: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Finally, the structure of the Constitution, and the premises of a free society, imply certain liberties, such as the freedom of association and the right to travel.

The uncertainty and even illogic of Supreme Court decisions protecting certain groups and rights—why illegitimate children and not homosexuals, why a right to travel and not a right to housing—should not be viewed as merely the product of politics or prejudice. There are inevitably disagreements and inconsistencies over the proper boundaries of civil liberties and the proper judicial role in their recognition. Filling in the "majestic generalities" of the Constitution has always been a long-range and uncertain task.

An example of the difficulty is capital punishment—the question whether there is a constitutional right not to be executed even for a heinous crime. This liberty is widely accepted throughout the world, but the United States Supreme Court has not recognized it as a constitutional right, instead permitting states to impose sentences of death for murder, subject to due process limitations. Many consider capital punishment inherently a violation of civil liberties because of the randomness in its application, its finality in the face of inevitable trial errors, its disproportionate use against racial minorities, and its dehumanizing effect on both government and the people. The struggle over this and other claims of civil liberty continues in public opinion, legislatures, and the courts.

Another source of American civil liberties is the doctrine of separation of governmental powers, illuminated most notably in the eighteenth century by the philosophemontesquieu. Anticipating John Acton's dictum that absolute power corrupts absolutely, the Supreme Court recognized in loan association v. topeka (1875) that the "theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers." In the same vein, individual rights are enhanced by the existence of a diverse population. the federalist #51 states: "In a free government the security for civil rights [consists] in the multiplicity of interests."

The Supreme Court has enforced the principle of separation of powers. In youngstown sheet tube co. v. sawyer (1952) it denied that the President had constitutional power, even in time of national emergency, to seize private companies without legislative authorization. Two Justices rested on the separation of powers doctrine in new york times co. v. united states (1971) by holding that under all but extraordinary circumstances the President lacks inherent power to enjoin news organizations from publishing classified information. And in united states v. nixon (1974), while ruling that Presidents possess an executive privilege to maintain the secrecy of certain communications, the Court rebuffed President richard m. nixon's attempt to withhold White House tapes from the Watergate special prosecutor. In form, these decisions dealt with questions of allocation of governmental powers; in fact they were civil liberties decisions effectuating a structure designed, in Justice Brandeis's words, "to preclude the exercise of arbitrary power."

Neither the original Constitution nor the Bill of Rights guaranteed the right to vote, a cornerstone of democratic government as well as a civil liberty; slaves, women, and those without property were disfranchised. During the early nineteenth century states gradually rescinded property qualifications; the Fifteenth Amendment (1868) barred voting discrimination by race or color, and the Nineteenth Amendment (1920) outlawed voting discrimination on the ground of sex. Nevertheless, various devices were employed to prevent nonwhites from voting. These were curtailed by the voting rights act of 1965, the twenty-fourth amendment's invalidation of poll taxes as a qualification for voting, and the Supreme Court's decision in harper v. virginia board of elections (1966). The twenty-sixth amendment (1971) extended the franchise to all citizens eighteen years of age and older.

A controversial question is presented by the relationship between the right to property and civil liberties. As the Supreme Court stated in griffin v. illinois (1956), "Providing equal justice for poor and rich, weak and powerful alike is an age-old problem." Although some would reject any such link between economics and liberty, others disagree. alexander hamilton stated that "a power over a man's subsistence is a power over his will." More recently, Paul Freund, recognizing that economic independence provides a margin of safety in risk or protest, commented that the effective exercise of liberty may require "a degree of command over material resources."

To a limited extent the Supreme Court has concurred. It has prohibited discrimination against the poor in cases involving voting rights and access to the courts. It has also afforded procedural protection against loss of government entitlements, including a government employee's interest in his job and a recipient's interest in welfare benefits. On the other hand, the Court has refused to recognize a generalized constitutional right to economic security. The Court has permitted reduction of welfare benefits below a standard of minimum need, has permitted courtroom filing fees to keep indigents from obtaining judicial discharge of debts, and has refused to recognize a constitutional right to equalized resources for spending on public education. The Court said in dandridge v. williams (1970): "In the area of economics and social welfare, a State does not violate [equal protection] merely because the classifications made by its laws are imperfect." The idea that civil liberties imply a degree of economic security is not yet a principle of constitutional law.

Invasions of liberty are usually committed by government. But individuals may also be victimized by private power. The authority of medieval lords over their vassals was not merely economic. Today large institutions such as corporations, labor unions, and universities may seek to limit the speech or privacy of individuals subject to their authority. For this reason federal and state legislation bars racial discrimination and other forms of arbitrary discrimination in the hiring, promotion, and firing of employees, in the sale and rental of private housing, and in admission to academic institutions. The courts likewise have recognized that private power may defeat civil liberties by barring the enforcement of private restrictive covenants not to sell real estate to racial minorities and by barring private censorship and interference with freedom of association when those restrictions are supported by state action.

Civil liberties can never be entirely secure. Government and large private institutions often seek to achieve their goals without scrupulous concern for constitutional rights. In the eighteenth century Edmund Burke wrote: "Of this I am certain, that in a democracy the majority of citizens is capable of exercising the most cruel oppression upon the minority." More recently, Charles Reich observed that civil liberties are an "unnatural state for man or for society because in a short-range way they are essentially contrary to the self-interest of the majority. They require the majority to restrain itself." The legal rights of minorities and the weak need special protection, particularly under conditions of stress.

The first such condition is economic stringency. Mass unemployment and high inflation exacerbate ethnic rivalries and discrimination, and at times are offered to justify the repression of dissent. Minorities pay the heaviest price. The victims include the dependent poor, whose government benefits are often among the first casualties during economic recession.

War also strains the Bill of Rights, for a nation threatened from without is rarely the best guardian of civil liberties within. As noted, President Abraham Lincoln suspended habeas corpus during the Civil War and President Franklin D. Roosevelt approved the internment of Japanese Americans during World War II. In addition, President woodrow wilson presided over massive invasions of free speech during world war i; mccarthyism, the virulent repression of dissent, was a product of the Cold War of the late 1940s and early 1950s; and President lyndon b. johnson authorized prosecution of protestors during the vietnam war. More recently, the deterioration of deatente in the 1980s has led to interference with peaceful demonstrations, widespread surveillance of Americans, politically motivated travel bans and visa denials, and censorship of former government officials.

A third perennial source of trouble for civil liberties in America has been religious zeal. Anti-Catholic and Anti-Semitic nativism paralleled slavery during the nineteenth and twentieth centuries. The Scopes trial (1925), in which a public school teacher was convicted for teaching evolution, was the result of fundamentalist excesses. On the other hand, religious sentiments have often buttressed civil liberties by, for example, supporting the extension of civil rights to racial and other minorities and endorsing the claims of conscientious objectors to conscription in the armed services, even during wartime. But zealous groups threaten to infringe civil liberties when they seek government support to impose their own religious views on nonadherents. This has taken many forms, including attempts to introduce organized prayer in public schools, to outlaw birth control and abortion, and to use public tax revenues to finance religious schools.

If civil liberties exist simply as abstractions, they have no more value than the barren promises entombed in many totalitarian constitutions. To be real, rights must be exercised and respected. The political branches of government—legislators and executive officials—can be instrumental in protecting fundamental rights, and especially in preventing their sacrifice to the supposed needs of the nation as a whole. Yet majoritarian pressures on elected representatives are great during times of crisis, and the stress on liberty is most acute.

The vulnerability of politically accountable officials teaches that freedom is most secure when protected by life-tenured judges insulated from electoral retribution. The doctrine of judicial review, which gives the courts final authority to define constitutional rights and to invalidate offending legislation or executive action, is the most important original contribution of the American political system to civil liberty.

Since Chief Justice John Marshall wrote for a unanimous Supreme Court in marbury v. madison (1803) that the power of judicial review is grounded in the Constitution, tension has existed between this checking authority and the nation's commitment to majority rule. Challenges to the legitimacy of judicial review have been rejected with arguments based on the supremacy clause in Article VI of the Constitution, on the pragmatic need for national uniformity, and on history. Thus, roscoe pound, the long-time dean of Harvard Law School, concluded that the claim that judicial review is usurpation is refuted by the "clear understanding of American Lawyers before the Revolution, based on the seventeenth-century books in which they had been taught, the unanimous course of decision after independence and down to the adoption of the Constitution, not to speak of the writings of the two prime movers in the convention which drafted the instrument."

Judicial review reinforces the principle that even in a democracy the majority must be subject to limits that assure individual liberty. This principle is the essential premise of the Bill of Rights—the need to counteract the majoritarian pressures against liberty that existed in the eighteenth century and have persisted throughout American history. In the words of the Spanish writer Josea Ortega y Gassett, "[Freedom] is the right which the majority concedes to minorities and hence it is the noblest cry that has ever resounded in this planet." Further, the democratic political process requires civil liberties in order to function—the rights to vote, to speak, and to hear others. Elected legislatures and executive officials cannot be relied on to protect these rights fully and thus to assure the integrity of the democratic process; an insulated judiciary is essential to interpret the Constitution.

The role of the Supreme Court and other courts in exercising judicial review is valid even though their decisions may not reflect the view of the people at a given time. American democracy contemplates limitations on transient consensus and imposes long-term restrictions on the power of legislative majorities to act, subject to a constitutional amendment, because the democracy established by the Constitution is concerned not merely with effectuating the majority's will but with protecting minority rights. Further, as Burt Neuborne has pointed out, federal judges have a democratic imprimatur: "They are generally drawn from the political world; they are appointed by the President and must be confirmed by the Senate." It is for these reasons that James Madison viewed courts as the "natural guardian for the Bill of Rights."

The central role of independent courts in the enforcement of civil liberties has provoked efforts to weaken judicial review. The abolitionists, dissatisfied with federal judges who protected the rights of slaveholders, clamored for jury trials for alleged fugitive slaves; populists have long urged the popular election of judges; and Franklin D. Roosevelt sought to pack the Supreme Court to bend it to popular will. More recently, bills have been introduced in Congress to limit the jurisdiction of the federal courts and to bar some legal remedies that are indispensable to the effectuation of certain constitutional rights. Whatever the perceived short-term advantages of such schemes to one group or another, the long-term effect would be erosion of judicial review and a consequent undermining of civil liberty.

The centrality of courts to the constitutional plan must not obscure the equally important role of legislatures. They can enhance or weaken civil liberty and, absent a declaration of unconstitutionality, their actions are final. During the period of the warren court, it was widely assumed that the judiciary alone would defend individual rights because legislatures were subject to immediate pressures from the electorate that prevented them from taking a long and sophisticated view of American liberties and protecting minorities and dissenters. But during the 1960s Congress prohibited discrimination in employment, housing, access to public accommodations, and voting; it passed the freedom of information act; and it provided legal services for the poor. A few years later it enacted laws aimed at protecting the privacy of personal information. Congress can authorize expenditures, create and dismantle administrative agencies, and enact comprehensive legislation across broad subject areas—powers beyond the institutional capacity of courts.

Legislatures can also impair civil liberties in ways other than restricting judicial review. In recent years battles have raged in Congress over the Legal Services Corporation, the freedom of information act, the voting rights act, school prayer, tuition tax credits to support private schools, the powers of the Central Intelligence Agency and the Federal Bureau of Investigation, and many other issues. This congressional agenda reflects an intense national debate over the meaning and scope of civil liberties in the 1980s.

Whatever the forum, the security of civil liberty requires trained professionals to press the rights of people. Throughout American history the services of paid counsel have been supplemented by lawyers who volunteer out of ideological commitment or professional obligation. Publicly supported legal services organizations and legislative provision for awarding attorneys' fees to prevailing plaintiffs in civil rights cases have encouraged the growth of a sophisticated bar that litigates constitutional issues. Vital support for the defense of civil liberties is also provided by private organizations such as the american civil liberties union (ACLU) and more specialized groups such as the National Association for the Advancement of Colored People, the National Organization for Women, and public interest law firms ranging across the political spectrum. These bodies engage in litigation, legislative lobbying, and public education in order to advance the rights of their constituencies or constitutional rights generally.

History shows that civil liberties are never secure, but must be defended again and again, in each generation. Examples of frequently repetitive violations of civil liberties involve police misconduct, school book censorship, and interference with free speech and assembly. For instance, the ACLU found it necessary to assert the right of peaceful demonstration when that right was threatened by Mayor Frank Hague's ban of labor organizers in New Jersey in the 1930s, by Sheriff Bull Connor's violence to civil rights demonstrators in Alabama in the 1960s, by the government's efforts to stop antiwar demonstrators in Washington in the 1970s, and by the 1977–1978 effort of the city of Skokie, Illinois, to prevent a march by American Nazis.

The continuing defense of civil liberties is indispensable if often thankless. Strong and determined opponents of human rights have always used the rhetoric of patriotism and practicality to subvert liberty and to dominate the weak, the unorthodox, and the despised. Government efficiency, international influence, domestic order, and economic needs are all important in a complex world, but none is more important than the principles of civil liberties. As embodied in the Constitution and the Bill of Rights, these principles reflect a glorious tradition extending from the ancient world to modern times.

Norman Dorsen
(1986)