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Civil Liberties and War

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

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Civil Liberties

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 states 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 individuals 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

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civil liberty

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.

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civil liberties

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

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civil liberty

civil liberty: see liberty.

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civil liberties

civil liberties See CIVIL RIGHTS.

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Civil Liberties

Civil Liberties

Sections within this essay:

Overview
The Bill of Rights
The ACLU
Other Organizations
Civil Liberties Issues
Banning Books in Schools
DNA and Exoneration
The USA PATRIOT Act
Monitoring Domestic Phone Calls

Additional Resources
Organizations
American Civil Liberties Union (ACLU)
American Library Association
Fairness and Accuracy in Reporting (FAIR)
People for the American Way

Overview

The Declaration of Independence states that all individuals have a right to "life, liberty, and the pursuit of happiness." When the United States Constitution was signed on September 17, 1787, it further established those rights for Americans. Anyone born or living in the United States would have the right to speak or write freely on any topic, the right to choose any religion, the right to assemble peacefully for any purpose, and the right to a trial by jury. More that two centuries later, the Constitution still guarantees those rights.

The Constitution was hardly a perfect reflection of true civil liberties; it would be nearly a hundred years before slaves were freed and more than fifty years after that before women could vote in national elections. What has made the Constitution work is its ability to accommodate social justice and the fact that there have always been people willing to fight for civil liberties.

There have been times when people questioned whether Americans needed as many civil liberties as they have. In times of war, for example, debates over whether certain liberties must be curtailed always take place. During World War II, the federal government placed 110,000 Japanese Americans, two thirds of whom were U.S. citizens, in internment camps. The measure was deemed necessary on account of the possible danger of espionage and infiltration of enemy forces. In hindsight, the government realized that this was an egregiously mistaken action (many Japanese American' in fact, had served bravely during the war in the U.S. armed forces), and Congress issued an official apology in 1993. After the war ended, fear of Communism caused state and federal governments to pass legislation requiring certain government employees to take "loyalty oaths" assuring that they were not Communists or members of like-minded groups. The issue reached the boiling point when Senator Joe McCarthy of Wisconsin claimed that there were Communists working in the federal government. McCarthy launched a series of Senate hearings, and people who were accused of being Communists often lost their jobs. The Communist scare burned itself out, but not before destroying many lives.

Those who feel that civil liberties can be curtailed under special circumstances will explain that special circumstances call for special measures. Civil libertarians will remind them that there is always a danger that once the special circumstances end, there is no guarantee that the self-imposed restrictions will also end.

Many people mistakenly believe that civil libertarianism is the same as political liberalism. Civil libertar-ians can be liberal, conservative, or anywhere within the political spectrum. Gun control is a good example. Most people do not think of groups such as the National Rifle Association (NRA) as a politically liberal entity. Yet the NRA, which was founded in 1871, has long been a vocal supporter of the Second Amendment, which gives citizens the right to keep firearms. The NRA's commitment to civil liberties, as it sees them in this regard, is hardly in question even by its opponents.

The Bill of Rights

The first ten amendments to the U.S. Constitution are commonly known as the Bill of Rights. They set the groundwork for what we today consider our basic civil liberties. These amendments guarantee the following rights:

  • Right to free speech. The First Amendment guarantees the right to freedom of speech, freedom of the press, and freedom to assemble peaceably.
  • Right to bear arms. The Second Amendment guarantees each state's right to keep a militia, and arguably the right of individuals to keep firearms.
  • No unauthorized quartering of soldiers. The Third Amendment prohibits soldiers from being quartered in private residences during peacetime without permission, nor during war time except under special circumstances.
  • Freedom from search and seizure. The Fourth Amendment guarantees the right against search and seizure of personal property or private papers.
  • Freedom from self-incrimination. The Fifth Amendment protects against selfincrimination and double jeopardy, and it guarantees due process.
  • Trial by jury. Under the Sixth Amendment, individuals have a right to be tried by a jury of their peers in criminal cases. The Seventh Amendment guarantees trial by jury in civil cases involving certain set sums of money.
  • Protection from excessive bail. The Eighth Amendment protects against excessive bail and also against cruel and unusual punishment.
  • Unlisted rights and powers. The Ninth Amendment states that any rights not listed are retained by the people, and the Tenth Amendment states that powers not delegated to the federal government are retained by either the states or the people.

Other key amendments guaranteeing civil rights and liberties include the Thirteenth Amendment (which prohibits slavery), the Fourteenth Amendment (which granted citizenship to former slaves), the Fifteenth Amendment (which guaranteed that the right to vote could not be denied on account of race), and the Nineteenth Amendment (which granted women the right to vote). The Twenty-Fourth Amendment, ratified in 1962, prohibited the imposition of a voters' poll tax on any individual

The Constitution was designed so that it could be amended, but the amendment process is by design not easy. Both houses of Congress must approve a proposed amendment by a two-thirds majority, and the amendment must then be ratified by three quarters of the states within a specific time frame (typically seven years). This procedure keeps the Constitution from becoming bogged down with scores of frivolous or narrow-issue amendments. This can work for or against the interests of civil libertarians. The proposed "Equal Rights Amendment" was passed by Congress in 1972 but failed to get ratified even after the ratification period was extended by three years. A proposed amendment in 2004 that would have imposed a constitutional prohibition on same-sex marriage did not receive enough Congressional support to be voted into existence.

The ACLU

The best known civil liberties organization in the United States is the American Civil Liberties Union (ACLU). Founded in 1920, the ACLU works at the national, state, and local level through the courts, legislatures, and communities to ensure individual rights and liberties are not abridged. The ACLU has branches across the United States and maintains an active network of professionals and volunteers. The ACLU challenges legislation and any government action that it feels endanger civil rights.

The list of issues the ACLU handles is quite comprehensive: discrimination, religious freedom, privacy, free speech, prisoners' rights, immigrants' rights, rights of the poor, the death penalty—to name a few. The ACLU initiates lawsuits and often offers to defend those whose civil liberties have been challenged. In addition, the ACLU also issues "friend of the court" briefs for cases that go before the courts.

One of the ACLU's earliest battles was the Scopes trial in Dayton, Tennessee in 1925. Tennessee had enacted legislation prohibiting the teaching of evolution and the ACLU decided to seek out a test case to argue for free speech. John T. Scopes volunteered to be the test case, and the ACLU agreed to provide legal counsel. The lead attorney was the noted defense lawyer Clarence Darrow, who argued vigorously in defense of Scopes' right to teach evolution. Although Scopes was convicted and fined $100, the case brought the issue, and the ACLU, to national prominence.

A more recent case, one that was a victory for the ACLU, was ACLU v. Reno. The ACLU challenged the constitutionality of the Communications Decency Act of 1996, which prohibited "indecent" speech over the Internet. The act was too broad and sweeping, claimed the ACLU, and threatened to endanger the free exchange of ideas online. The U.S. Supreme Court agreed and voted unanimously that the act was unconstitutional.

Many people think of the ACLU as a liberal organization aimed promoting a leftist agenda. In fact, the ACLU has defended people and institutions of all political beliefs. For example, the organization has opposed the creation of "hate speech" regulations on college and university campuses. The argument is that even hateful speech is protected under the Constitution (unlike hate-based actions), and a better way to deal with hate speech is to find its root causes instead of merely banning it.

Other Organizations

Although the ACLU is the best known and most prominent civil liberties organization, other national and local groups also challenge what they see as the erosion of civil liberties. The New York Civil Liberties Union (NYCLU), for example, does much of the same legal and advocacy group that the ACLU does. (The NYCLU was actually founded in 1951 as the New York affiliate of the ACLU.) The NYCLU focuses on civil liberties issues in New York, including issues surrounding security measures put in place since the September 11 attacks. A typical example is a federal suit filed in January 2006 by the NYCLU and the New York University Civil Rights Clinic on behalf of a filmmaker who was detained in May 2005 for filming on a Manhattan street. He was warned that he needed a permit, but when he applied for one some months later his application was denied without explanation. The lawsuit filed by the NYCLU claimed that the film-permit requirement is unconstitutional.

People for the American Way, founded in 1980 by television and film producer Norman Lear, works to protect civil liberties by advocating with government agencies, providing statistics and information on civil rights activities across the country, and educating the public on civil liberties issues.

The American Library Association (ALA), which has more than 64,000 members across the country, works to ensure high quality information in libraries, and public access to that information. The ALA, through its Office for Intellectual Freedom, provides information on legislation and government activity that can affect how libraries disseminate information. Its opposition to Section 215 of the USA PATRIOT ACT (see below) is one example. ALA also created guidelines for librarians on how to comply with the Children' Internet Protection Act (CIPA), which requires libraries to use filters to keep minors from accessing adult material.

Civil Liberties Issues

Although civil liberties groups have actively advocated on behalf of civil rights over the decades, and although they have had many successes, they are quick to point out that vigilance is the key to ensuring civil liberties are not allowed to slide. Below are some typical issues from the late twentieth and early twenty-first centuries.

Banning Books in Schools

School boards regularly attempt to ban books, with classics such as The Adventures of Huckleberry Finn and Of Mice and Men among the most frequently challenged, according to ALA. In the early years of the twenty-first century, the Harry Potter series of books, which tell the story of a young aspiring wizard and his adventures in wizard school, have become a focal point for many who oppose the focus on wizardry and magic.

School boards do not have an absolute right to remove books from school library shelves. In the case of Board of Education v. Pico., decided in 1982 by a 5-4 majority, the U.S. Supreme Court case ruled against the school board of Island Trees, New York, which had removed several books from the school library shelves. Included among these books were The Fixer by Bernard Malamud, Slaughterhouse Five by Kurt Vonnegut, Best Short Stories of Negro Writers(edited by Langston Hughes), A Hero Ain't Nothin' But A Sandwich by Alice Childress, and A Reader for Writers (edited by Jerome Archer).

The court noted that school boards do have discretion in what books to acquire for the school, and it could reject any works deemed to be "pervasively vulgar." But Justice William Brennan wrote that "the special characteristics of the school library make that environment especially appropriate for the recognition of First Amendment rights of students."

DNA and Exoneration

DNA evidence can be used to convict criminals, and it has successfully been used to exonerate individuals, some of whom were wrongly imprisoned for more than two decades. Often, when a person who has been convicted of a crime tries to get DNA evidence admitted as evidence, the courts are reluctant, despite the fact that such evidence could exonerate an innocent person.

Often, the person who is wrongly convicted of a serious crime such as murder or rape has a criminal record for petty crimes, which means a record already exists. Civil libertarians have argued that many of these individuals were arrested and convicted more as a matter of expediency than of true suspicion.

The Innocence Project, created in 1992 by Peter Neufeld and Barry Scheck at the Benjamin Cardozo School of Law in New York, works to exonerate people by use of postconviction DNA, in which DNA from the crime scene is tested against the accused's DNA. Often, physical evidence from a crime is kept for many years. If the evidence includes samples of blood, hair, skin, or other evidence that can include DNA, and if that evidence has not been contaminated or corrupted, it can often be used to prove a person's innocence. Between 1992 and 2005, the Innocence Project helped exonerate 173 prisoners.

The USA PATRIOT Act

On October 26, 2001, less than two months after the September 11 attacks, Congress passed the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). This act gave the government greater ability to seek out and combat terrorist activity in the United States. The PATRIOT Act grants the Secretary of the Treasury with new regulatory powers to fight money laundering from foreign countries in U.S. banks; secures national borders against foreign nationals who are terrorists or who support terrorism; eases restrictions on interception and surveillance of correspondence and communication that may link to terrorist activity; stiffens penalties against money laundering, counterfeiting, charity fraud, and similar crimes; and creates new crimes and penalties for such acts as harboring terrorists and giving terrorists material support.

Civil liberties groups complained that the PATRIOT Act, hastily passed in a national atmosphere of grief, anger, and fear, granted the federal government too much power over innocent people or to track private records. One of the most controversial provisions was Section 215 of the Act, which gives the FBI permission to examine business records for foreign intelligence and international terrorism investigations. Called the "library provision" because some have read it to mean that libraries will be required to turn over lists of who has checked out which books, it has been criticized as overly broad by groups such as the ACLU and the American Library Association, but also by political leaders from both parties.

Another point of contention is the existence of National Security Letters, which give federal law enforcement agencies the authority to access an individual's personal records without first seeking a warrant. Opponents of this procedure said that such letters should only be issued when a reasonable connection can be made between the subject and terrorist activity. They also said that targets of these letters should have the right to challenge them in court.

As of the end of 2005 certain provisions of the PATRIOT Act were slated to sunset by February 2006, although members of Congress were planning to seek renewal or compromise on certain sections that were controversial.

Monitoring Domestic Phone Calls

In December 2005 The New York Times published a story claiming that President George W. Bush had authorized the National Security Agency to monitor domestic telephone calls without first obtaining a warrant, as required under the Federal Intelligence Surveillance Act of 1978 (FISA). The Bush Administration confirmed that the wiretaps had been authorized, but he also claimed that as president, he had the right to make such an authorization, citing a joint resolution by Congress shortly after the September 11 attacks. That resolution, President Bush said, authorized him to take whatever steps were necessary to pursue individual terrorists and terrorist groups. He insisted that his actions were legal and necessary.

Civil libertarians, however, did not see the issue the way the Bush Administration did. Groups such as the ACLU claimed that Bush had circumvented the law by failing to get the proper warrants from a special FISA court set up to serve exactly that purpose. The problem, they maintained, was not so much that the president felt compelled to conduct the wiretaps, but that he did not even inform the relevant agencies about what he was planning to do.

The rationale behind this is what makes civil liberties such a complex issue. On the one hand, the libertarians make a valid point: There was no reason for the president to bypass the FISA court, and by omitting this step he may have compromised individual freedom more than he realizes. On the other hand, the president's supporters make an equally valid observation: If just one overheard telephone conversation gives the nation a piece of valuable information (such as the location for a terrorist attack) that saves lives and destruction, the benefit is well worth the trade-off of not obtaining a warrant first.

As of January 2006 it was unclear whether Congress would declare the Bush Administration's actions illegal under existing legislation.

Additional Resources

At War with Civil Rights and Liberties, Thomas E. Baker and John F. Stack, Jr., eds. Rowman and Littlefield Publishers, 2006.

Banned in the USA: A Reference Guide to Book Censorship in Schools and Public Libraries, Herbert N. Foerstel, Greenwood Press, 2002.

In Defense of American Liberties: A History of the ACLU, Samuel Walker, Southern Illinois University Press, 1999.

Organizations

American Civil Liberties Union (ACLU)

125 Broad Street, 18th Floor
New York, NY 10004 USA
Phone: (212) 344-3005
URL: http://www.aclu.org/
Primary Contact: Anthony D. Romero, Executive
Director

American Library Association

50 East Huron Street
Chicago, IL 60611 USA
Phone: (800) 545-2433
URL: http://www.ala.org
Primary Contact: Keith Michael Fiels, Executive
Director

Fairness and Accuracy in Reporting (FAIR)

112 West 27th Street
New York, NY 10001 USA
Phone: (212) 633-6700
Fax: (212) 727-7668
URL: http://www.fair.org

People for the American Way

2000 M Street, NW
Washington, DC 20036 USA
Phone: (202) 467-4999
URL: http://www.pfaw.org
Primary Contact: Ralph G. Neas, President

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Civil Liberties

CIVIL LIBERTIES

Civil liberties and associated controversies reflect the basic sociological issue of what may comprise the requirements of a free yet sustainable society. Classical interests of social thought directly or indirectly concern civil liberties because they address the degree to which individuals may exercise autonomy within the bounds of enduring social relations and community needs. Some of sociology's most venerable research has focused directly on civil liberties. Stouffer's Communism, Conformity, and Civil Liberties (1955) served as an intellectual punctuation mark on the McCarthy era, the period during which public discord over civil liberties reached its most intense state in the post-World War II world. Sociological thinking and research has helped American intellectuals and policy makers frame the issues associated with civil liberties and understand the implications of decisions regarding civil liberties for the well-being of society.

Civil liberties may be understood as legally protected areas in which the individual may function without interference by the state or the broader community of citizens. "Civil liberties" are analytically distinct from "civil rights." Civil liberties concern the individual's freedom from the broader society and its laws. Civil rights derive from the individual's claim on society and the state to give him or her equal protection through the state's police power and equal rights regarding public facilities, services, and largesse. Civil liberties concern the individual's rights to think, speak, and act outside the state's apparatus and jurisdiction. Civil rights address the individual's claim on equal access to public resources such as buses and schools, protection from harm by state agencies, and participation in government and politics.

Sociology offers several core capabilities to promote the citizens' and policy makers' understanding of civil liberties and the implications of related public decisions. Classical and contemporary work by sociologists has pertinence in three areas. First, sociological theory and commentary informed by theory helps specify the central dilemmas raised by civil liberties. Second, sociological research enables observers to discover the state of public opinion regarding civil liberties, the dynamics by which public opinion has developed and changed in the past, and the manner in which public opinion may unfold in the future. Finally, sociological thinking and research serves as a resource for understanding the potential consequences of public decisions regarding civil liberties in the years to come. This last capability can aid public decision making and help lay groundwork for achieving the broadest range of civil liberty in society while maintaining the social cohesion necessary to ensure stability, continuity, and affirmation of individual life by core social institutions.

Debate regarding civil liberties has traditionally concerned freedom of expression and due process. Positions regarding freedom of expression have sought to protect the right of individuals to publicly support politically unpopular causes or to display or publish material others may view as objectionable (e.g., pornography). Due process issues have focused on the rights of defendants in criminal cases and claimants in civil and administrative proceedings. Civil liberties advocates have drawn core support from the Bill of Rights and subsequent amendments to the U.S. Constitution safeguarding free speech, prohibiting unreasonable search and seizure, and limiting the criminal justice system's ability to require citizens to give self-incriminating testimony. Civil liberties advocates depend heavily on legal doctrines and devices derivative of the Bill of Rights such as fairness, equal protection of the law, and the right of privacy.

The late twentieth century saw a vast extension of activities to which the status of a civil liberty was applied. The 1998 edition of the American Civil Liberties Union's (ACLU) The Year in Civil Liberties, for example, reports challenges by ACLU units to practices and policies such as:

  • Religious celebration in public settings (viz. school prayer and holiday displays),
  • Youth curfews,
  • Prohibition of marijuana use for medical purposes,
  • School vouchers,
  • Wrongful dismissal from employment due to politics or sexual preference,
  • Restraint and corporal punishment of prisoners and "high-risk" legal defendants,
  • The death penalty,
  • Prohibition of public funding for abortions,
  • Legal barriers to adoption of children by lesbian or gay individuals or couples,
  • Restriction of legal marriage to heterosexuals only,
  • "Sodomy" laws.

According to the ACLU document, these laws and policies belong to a common category of threats to "fairness, freedom of expression, equality, and keeping the government out of our private lives."

The ACLU does not unilaterally speak for those concerned with civil liberties. But controversy surrounding the ACLU's extended definition of civil liberties recapitulates central issues in sociological theory, social thought, and public policy. Early social theorists emerging from free-market economics and utilitarianism encountered (wittingly or by implication) the question of what holds society together, given that individuals "naturally" behave in an atomized manner. Modern participants in civil liberties controversies confront (again wittingly or by implication) a tension between unrestricted individual liberty and the needs of the community and requirements for viable social institutions.

Etzioni, in an essay commenting on the ACLU's expansion of concerns, emphasizes contradictions between individual liberties and community needs (Etzioni 1991). He stresses the necessity of modifying constitutionally protected individual rights in instances of compelling social exigency. Examples of such modification in the late twentieth century included x-raying of luggage at airports, conducting voluntary fingerprinting of children to facilitate their identification if kidnapped, contact-tracking for people infected with HIV, and mandatory drug testing of workers whose impairment endangers others, such as train engineers. Although these measures have enjoyed public support and none has materially affected the basic rights of the general population, each has been the focus of civil liberties controversies and actions.

Etzioni characterizes opposition to measures such as these as "radical individualism," encouraged at late century by an imbalance between "excessive individual rights and insufficient social responsibility." His analysis characterizes the U.S. Constitution as broader than a code of legal provisions to protect the individual from government. The law of the land is also a reflection of "public morality, social values, and civic virtue." Eclipse of these elements of civil society, Etzioni implies, precludes even marginal modification of legal traditions in the face of compelling social need. He warns that resulting governmental paralysis may ultimately give rise to popular disillusionment, social distress, and abandonment of safeguards to personal liberty on a far greater scale than the marginal modifications initially proposed.

Another critic of ACLU positions alleges that the imbalance between one-sided civil liberties protection and community needs has already affected American social institutions adversely and to a significant degree. Siegel (1991) writes that "the libertarians and their allies in the courts have . . . reshaped virtually every American public institution in the light of their understanding of due process and equal protection under the Fourteenth Amendment." This reshaping has had an "elitist" quality, proceeding through abstract legal reasoning and argument but materially harmful, particularly to the economically disadvantaged. According to Siegel's argument, civil liberties victories in court place burdens on social institutions and prevent them from responding to social reality. Siegel writes:

Civil liberties have become an economic issue as those who can afford it either flee the cities or buy out of public institutions. For those who can't afford to pay for private school, or private vacations, and are left with junkie infested parks, who can't afford the private buses which compete with public transportation, and are unable to pay for private police protection, the rights revolution has become a hollow victory. The imposition of formal equality, the sort that makes it almost impossible, for instance, to expel violent high school students, has produced great substantive inequality as would-be achievers are left stranded in procedurally purified, but failing institutions. (Siegel 1991)

Both Etzioni's and Siegel's critique of the civil liberties movement reflect sociology's core perspective and concern, the essential tension between individualistic and social forces. More concretely, sociology's traditional concern with civil liberties has focused on the citizen's thinking regarding tolerance of deviation. Survey research has served as the primary source of such information.

Stouffer's above-referenced classic sounded an optimistic note at the conclusion of the McCarthy era. His study focused on tolerance of people espousing communism and atheism, "nonconformist" ideologies that excited widespread public hostility at the time. In separate surveys conducted by the National Opinion Research Center (NORC) and the Gallup organization, Stouffer asked respondents whether communists and atheists should be allowed to speak in their communities, whether they should be allowed to teach in colleges or universities, and whether their books should be removed from public libraries.

The Stouffer study is remembered largely for reporting relationships between two focuses of social distinction and tolerance for the nonconformist ideologies. Community leaders and people with advanced education were more likely to score in the "more tolerant" range than the national cross section. On this basis, Stouffer concluded that Americans would become more tolerant of nonconformity in the decades to follow, since the average American was receiving more years of education than his or her parents. Level of education correlated strongly with tolerance in every age group except sixty and over.

A subtheme in the heritage left by Stouffer was evidence for personality-based causes of intolerance regarding civil liberties for deviants. Experience with European totalitarianism had led psychologists to develop the theory of the "authoritarian personality." Measured according to a device known as the "F scale," personalities of this kind were distinguished by a simplistic world view, respect for power, and obedience to authority (Adorno 1950). Statistically significant relationships were found between F scale items and intolerance in the Stouffer data. Consistent with these findings, sociologists such as Lipset (1981) claimed that authoritarianism was more likely to be found in the working rather than the middle or upper classes. It is tempting to conclude that a negative relationship between education and basic authoritarianism explains the greater willingness of educated people to extend civil liberties to the politically unpopular, and to speculate that greater education will reduce, if it has not reduced already, personality-related proclivities toward intolerance.

Later research, though, has shown the sociology of public opinion regarding civil liberties to be more complex. Early critics pointed out technical flaws in the F scale. The scale's items, for example, were all worded in the same direction, encouraging positive responses. Critics raised the possibility that reported relationships between F scale scores and education merely reflected a positive response bias which was particularly strong among working-class respondents. Members of the working class, it was theorized, have a tendency to acquiesce to strong, positive assertions, particularly when these are presented by higher-status individuals such as pollsters.

Reanalysis of the Stouffer data and analysis of data from NORC's 1990 General Social Survey (GSS) by Schuman, Bobo, and Krysan (1992) casts doubt upon the causal chain implied above: that low social status (indicated by education) "causes" authoritarian personality, and that authoritarian personality subsequently "causes" intolerance of civil liberties for nonconformists and deviates. Reanalyzing Stouffer's data, these investigators found relationships between authoritarianism and intolerance of communists and atheists only among the more highly educated. In the 1990 GSS data, they found relationships between authoritarianism and intolerance for blacks and Jews again confined to the educated. The investigators conclude that there is no substantive relationship between class and authoritarianism. Evidence does emerge for a relationship between personality factors and both support for civil liberties for nonconformists and tolerance of minorities. But the roots of these personality factors are unknown and presumably much more complex than class-based socialization.

Changes in public concerns since the 1950s make it risky to apply the findings of Adorno, Stouffer, and others of their era to today's citizens and social issues. By the end of the twentieth century, communism and atheism had ceased to be mainstream public concerns in the United States. Analysis of civil liberties issues regarding crime had risen to prominence. Remedies such as permanent incarceration of habitual criminals and community notification regarding sex offenders ("Megan's Law") had been widely adopted. Increased latitude by police for searching and surveillance of citizens was widely discussed.

Public attitudes favoring compromise of civil liberties in the interests of aggressive law enforcement seemed stable during the 1980s and 1990s. Comparison over time of poll results on the tradeoff between aggressive policing and civil liberties indicates growing support for warrantless police searches of cars and drivers. Decided majorities of respondents to Roper and Gallup polls in 1985 and 1986 approved of school officials' searching students' belongings for drugs or weapons, again without a warrant. The late twentieth century, though, saw no large-scale support for abandonment of civil liberties in pursuit of greater security. One trend showed a modest rise in support for surveillance of citizens, but another indicated just the opposite: the public did not think it was necessary to "give up some civil liberties" to prevent terrorism (Shaw 1998).

Civil libertarians might feel more alarmed by the polls' findings regarding public ignorance about constitutional rights. According to one survey, only 56 percent of Americans were aware of the innocent-until-proven-guilty principle (Parisi 1979). In another study, only one-third of the respondents correctly indicated the truth or falsehood of a statement regarding double jeopardy (McGarrell and Flanagan 1985).

Review of the studies cited above implies two major conclusions about public opinion regarding civil liberties. First, social determinants of support for civil liberties are likely to be complex and to change over time. Second, the specific focus of concern surrounding civil liberties—for example, the rights of communists versus those of crooks—may predominantly affect their support among citizens. Continual exercise of pertinent sociological research tools is required to maintain awareness of civil liberties-related attitudes and trends; associated theories appear in periodic need of reconstruction.

There is good evidence that sociological thinking and research techniques can promote understanding of the consequences of public decisions regarding civil liberties and help balance civil liberties and community needs. Etzioni's critique includes a recommendation for "limited adjustment" of civil liberties in the interests of society. Criteria for activation of limited adjustment include a "clear and present danger" of sufficient gravity to "endanger large numbers of lives, if not the very existence of our society," and a "direct link between cause and effect." As illustrations, Etzioni cites nuclear weapons, crack cocaine, and AIDS. He recommends minimal interference with constitutional rights, seeking remedies whenever possible that do not actually involve civil liberties.

Even the most measured approach to "adjustment" of civil liberties, though, raises issues for social theory and research. Designation of "clear and present danger" is as much a social fact as one of nuclear physics, pharmacology, and epidemiology. Civil libertarians may justifiably ask what makes crack cocaine a potential threat to society while other narcotics, while causing significant human misery, have not brought society down. Similar issues may be raised regarding AIDS, a biologically less-contagious disease than the traditional scourges of syphilis and gonorrhea. To what extent, researchers should ask, may the objective significance of these threats have been exaggerated by public emotion?

The impacts of small modifications of civil liberties on the problems these measures are intended to ameliorate should also be viewed as empirical issues. Does contact-tracking of people with AIDS actually drive some underground, making their disease invisible to society and hence more dangerous? If so, how many go underground, for how long, and by what means? Research on likely behavior of people with AIDS and other stigmatized diseases is an essential adjunct to related public decision making.

Finally, the degree to which minor adjustment may ultimately weaken the fabric of civil liberties is a necessary direction for research. Etzioni puts aside the notion that minor modification may initiate a slide down the "slippery slope" toward government or communitarian domination by citing the innocuous nature of procedures such as child fingerprinting. But systematic examination of many seemingly small adjustments may indicate that some indeed result in cascades of increasingly pernicious modifications. Study of the conditions under which the minor modification of traditions has in fact led to their eventual collapse could form the basis of a relevant theory.


references

Adorno, Theodore W. et al. 1950 The Authoritarian Personality. New York: Harper.

Etzioni, Amitai 1991 "Too Many Rights, Too Few Responsibilities." Society 28:41–48.

Lipset, Seymour M. 1981 Political Man. New York: Doubleday.

McGarrell, E.F., and T. Flanagan (eds.) 1985 Sourcebook of Criminal Justice Statistics—1984. Washington, D.C.: Department of Justice.

Parisi, Nicolette et al. (eds) 1979 Sourcebook of Criminal Justice Statistics—1978. Washington, D.C.: Department of Justice.

Schuman, Howard, Lawrence Bobo, and Maria Krysan 1992 "Authoritarianism in the General Population: The Education Interaction Hypothesis." Social Psychology Quarterly 55:379–387.

Shaw, Greg M. et al. 1998 "Crime, the Police and Civil Liberties." Public Opinion Quarterly 62:405–426.

Siegel, Fred 1991 "Individualism, Etatism, and the ACLU." Society 28:20–22.

Stouffer, Samuel A. 1955 Communism, Conformity, and Civil Liberties. Garden City, N.Y.: Doubleday.

Whitfield, Emily, and Amy Weil 1998 The Year in Civil Liberties: 1998. New York: American Civil Liberties Union.


Howard P. Greenwald

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Civil Liberties

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)

Bibliography

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Chafee, Zechariah, Jr. 1941 Free Speech in the United States. Cambridge, Mass.: Harvard University Press.

——1956 The Blessings of Liberty. Philadelphia: Lippincott.

Dewey, Robert E. and Gould, James A., eds. 1970 Freedom: Its History, Nature, and Varieties. London: Macmillan.

Dorsen, Norman 1970 The Rights of Americans: What They Are—What They Should Be. New York: Pantheon.

——, ed. 1984 Our Endangered Rights. New York: Pantheon.

Emerson, Thomas I. 1970 The System of Freedom of Expression. New York: Random House.

Haiman, Franklyn 1981 Speech and Law in a Free Society. Chicago: University of Chicago Press.

Hand, Learned 1960 The Spirit of Liberty. New York: Knopf.

Marshall, Burke, ed. 1982 The Supreme Court and Human Rights. Washington, D.C.: Forum Series, Voice of America.

Muller, Herbert J. 1963 Freedom in the Western World from the Dark Ages to the Rise of Democracy. New York: Harper & Row.

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