13 - CIVIL LIBERTIES
Among the most fundamental principles of the American political culture is a respect for civil liberties and civil rights. Definition and protection of liberties and rights were a major concern of the founders, as reflected in the Declaration of Independence, the Constitution, and the Bill of Rights. Civil liberties and rights have continued to evolve through the years to the present by means of additional amendments (particularly the Fourteenth), court decisions, and legislative actions.
THE DECLARATION OF INDEPENDENCE
"We hold these truths to be self-evident; that all men are created equal, that
they are endowed by their Creator with certain unalienable rights, that
among these are life, liberty, and the pursuit of happiness.
That, to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed."
Thomas Jefferson, 1776
The Declaration clearly reflects the founders' belief that governments are responsible for protecting the "unalienable rights" of "life, liberty, and the pursuit of happiness." Since people are clearly capable of abusing the "natural rights" of others, the government must protect the rights of its citizens.
THE ORIGINAL CONSTITUTION
Most of the framers believed that the basic "natural rights" were guaranteed by the original Constitution before the Bill of Rights was added. Rights specifically mentioned in the body of the Constitution are:
The Writ of Habeas Corpus
"The privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
may require it."
Habeas Corpus literally means "produce the body." The writ is a court order requiring government officials to present a prisoner in court and to explain to the judge why the person is being held. Suspension of habeas corpus is a right of Congress, since the passage above appears in Article One, which defines the powers of Congress.
Originally, the writ was only a court inquiry regarding the jurisdiction of the court that ordered the individual's confinement, but today it has developed into a remedy that a prisoner can apply for. A federal judge may order the jailer to show cause why the person is being held, and the judge may order the prisoner's immediate release.
The Supreme Court under Chief Justice Rehnquist has severely limited the use of habeas corpus partly because on death row have used it to delay their execution, sometimes for years. Supporters of habeas corpus believe that judges should be allowed to use their own judgment in issuing the writs because they are protecting constitutional rights.
Ex Post Facto Laws and Bills of Attainder
The Constitution forbids both national and state governments from passing ex post facto laws. An ex post facto law is a retroactive criminal law that affects the accused individual negatively. Such laws may make an action a crime that was not a crime when committed, or they may increase punishment for a crime after it was committed. On the other hand, the restriction does not apply to penal laws that work in favor of the accused.
A bill of attainder is a legislative act that punishes an individual or group without judicial trial.
THE BILL OF RIGHTS
Even though most of the state constitutions in 1787 included separate bills of rights for their citizens, the original Constitution mentioned only the rights mentioned above scattered places within the articles that defined the powers of the branches of government. Many people were widely suspicious of this omission, and in order to gain ratification, the founders agreed in to add ten amendments in 1791, the Bill of Rights.
THE FOURTEENTH AMENDMENT
"All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Amendment Fourteen, Section One
Although the Fourteenth Amendment was originally passed in the post Civil War era specifically to protect the rights of ex-slaves, the famous Section One has extended protection of many citizens' rights to apply to state governments Whereas the Bill of Rights literally applies only to the national government, the Fourteenth Amendment is intended to limit the actions of state governments as well. Section One includes
COURT DECISIONS
The Supreme Court continues to shape the definition and application of civil rights and civil liberties. Although the court has always played an important role in the protection of civil rights and civil liberties, it has been particularly active in the modern era since about 1937. The Supreme Court sets precedents that influence legislation and subsequent court decisions. The Court's influence is based largely on judicial review, the power to judge the constitutionality of a law or government regulation.
LEGISLATIVE ACTION
The Constitution, the Bill of Rights, and the Fourteenth Amendment protect individuals from actions of government, but court decisions and legislation protect individuals from discriminatory actions by private citizens and organizations. Legislative action is an essential component of the modern civil rights era, although the courts took an earlier initiative. The activist court of the 1960s set precedents that broadly construe the commerce clause, which gives Congress the power to regulate interstate and foreign commerce. As a result, through laws like the Civil Rights Act of 1964, the legislature has played a major role in combating discrimination.
The Constitution, the Bill of Rights, the Fourteenth Amendment, Supreme Court decisions, and legislative actions all define the nature of civil rights and civil liberties in American society, but issues arise which constantly cause reinterpretations of the sources. Conflicts arise largely because issues often involve one citizen's or group's rights versus another's.
FIRST AMENDMENT LIBERTIES
"Congress shall make no law respecting an establishment of religion
or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances."
The First Amendment
The First Amendment protects civil liberties, which are based on the idea that government must be restrained from interfering with individual freedoms.
Freedom of Religion
Surprisingly, the First Amendment does not refer specifically to the "separation of church and state" or a "wall of separation." Those phrases evolved later, probably from letters written by Thomas Jefferson, but the First Amendment does prohibit the establishment of a government sponsored religion, such as the Anglican Church in England.
In recent years the establishment clause has helped define the role of religion in public schools. The 1943 Barnette case involved two girls in a West Virginia public school whose religion forbade them to salute the flag. The Barnette family's religious group, the Jehovah's Witnesses, believed that the flag salute represents worship of a "graven image" which the Bible expressly forbids. The flag salute thus violated the "wall of separation" guaranteed in the First Amendment. The Barnettes won their case and strengthened the power of the First Amendment to determine church/state relationships.
Another case in 1947 challenged a New Jersey town that was reimbursing parents for the cost of transporting students to school, including to local parochial schools. The plaintiffs claimed that since the parochial schools were religious, publicly financed transportation costs could not be provided for parochial students. The challenge was based on the establishment clause. The court in this case ruled against the plaintiffs, claiming that busing was a "neutral" activity, and the reimbursements were appropriate. However, the court made it clear that states cannot support one religion above another.
Freedom of Speech
Citizens of modern America almost take for granted the responsibility of the government to guarantee freedom of speech. In reality, the definition of freedom of speech has changed dramatically over the years, with an ever increasing emphasis on protection of free speech, often at the expense of other liberties and rights. Until recently, especially during times of war and crisis when national security is at stake, the government has passed laws that control free speech.
Early in U.S. history the government almost certainly did not put high priority on the government's responsibility to protect freedom of speech. John Adams, when faced with an international crisis that threatened war with France, saw that the Sedition Act was passed in 1798, making it a crime to write, utter, or publish anti-government statements with the "intent to defame." The Federalists, who favored strong government authority and emphasized order at the expense of liberty, believed that the First Amendment did not forbid punishing newspapers for libel. The Anti-Federalists did NOT argue that the press should be free of government controls; they protested the act on the grounds that state, not federal government should have control. Thomas Jefferson, a prominent Anti-Federalist, allowed the twenty year limitation of the Act to run out during his presidency, and the Act died during peace time with little protest.
Presidents, such as Abraham Lincoln during the Civil War, continued to support the government's right to restrict freedom of speech during national security crises through the 19th century and into the 20th. During World War I, the U.S. Congress passed two controversial laws that restricted freedom of speech: The Espionage Act of 1917 and the Sedition Act of 1918.
The Espionage Act forbid false statements that intended to interfere with the U.S. military forces or materials to be mailed if they violated the law or advocated resistance to government
The Sedition Act forbid individuals to utter, print, write or publish language intended to incite resistance to the U.S. government. Under the mandate of the Sedition Act, thousands were arrested and convicted, and some were deported from the country.
The most famous Supreme Court case that resulted from the World War I Restrictions was Schenck v. U.S. Charles Schenck, a socialist who mailed circulars to young men urging them to resist the military draft, was convicted of violating the Espionage Act. The Supreme Court upheld his conviction, with Oliver Wendell Holmes writing the precedent-setting opinion that any language that directly caused an illegal act was not protected by the First Amendment. Holmes distinguished between language that was merely critical of the government and that which was directly a "clear and present danger" to national security. The "clear and present danger" test became a standard by which to balance national security and freedom of speech.
Even before the U.S. entered World War II, Congress passed the Smith Act, intending to protect the country from the influence of Nazism and Communism. The Act contained two clauses:
A few cases were tried for wartime behavior, but the real impact of the Smith Act came after World War II was over with the fear of Communist espionage in the Red Scare, or McCarthyism. The U.S. experienced a dramatic reaction to the Cold War, fueled by the fear that communists were infiltrating the U.S. government and passed security secrets to the Russians. The Internal Security Act of 1950 required Communist organizations to register and to publish membership lists. Many were questioned by Congressional Committees and many were arrested.
By the late 1950s, with McCarthyism subsided and a new Supreme Court under the direction of Earl Warren, the Court leaned more and more toward freedom of speech. No laws were passed restricting speech during the Vietnam War, and the Brandenburg v. Ohio case established that speech would have to be judged as inciting "imminent" unlawful action in order to be restricted. The case involved a Ku Klux Klan leader convicted of attempting to incite mob action when he said "We'll take the (expletive deleted) street later." The conviction was overturned by the Supreme Court because Brandenburg did not call for an "imminent" action.
Today, the following forms of speaking and writing are not granted full constitutional protection
1) Libel, a written statement that attacks another person's character, is not automatically protected, although it is very hard to sue for libel. Public figures must prove that a statement is not only false but that it intended "actual malice," a condition that is very hard to define.
2) Obscenity is not protected, but the Court has always had a difficult time defining obscenity. The current Court leaves local governments to decide restrictions for hard-core pornography, but of they choose to restrict it, they must meet some strict constitutional tests. One common reaction has been for a local government to establish areas where pornography can and can't be sold.
3) Symbolic speech, an action meant to convey a political message, is not permitted because to protect it would be to allow many illegal actions, such as murder or rape, if an individual meant to send a message through the action. The Court has made an exception to the action of flag-burning, since flag-burning has no other intent than to convey a message. Symbolic speech includes advocacy of illegal actions, as well as "fighting words," or inciting others to commit illegal actions.
RIGHTS TO PROPERTY AND PRIVACY
Property Rights
The protection of individual property rights was a major objective of the framers of the Constitution. They saw the government as not only the protector of property but also the potential abuser of property rights.
The Fifth Amendment allows the government the right to eminent domain (the power to claim private property for public use), but the owner must be fairly compensated. The Court has interpreted this clause to be a direct taking of property, not just a government action that may result in a property losing value, such as a rezoning regulation. Also, "just compensation" is sometimes interpreted differently by the government and the property owner, in which case the courts are the final arbitrators. The due process clauses in the Fifth and Fourteenth Amendment forbid the national and state government to "deny any person life, liberty, or property without due process of law." Although the Supreme Court has refused to define precisely what is meant by due process, it generally requires a procedure that gives an individual a fair hearing or formal trial. Although due process is most often associated with the rights of those accused of crimes, it is required for protecting property rights as well.
Privacy Rights
The phrase "right to privacy" does not appear anywhere in the Constitution or the Bill of Rights. The idea was first expressed in the 1965 Griswold v. Connecticut case in which a doctor and family-planning specialist were arrested for disseminating birth control devices under a little-used Connecticut law that forbid the use of contraceptives. The Supreme Court ruled against the state, with the majority opinion identifying "penumbras" - unstated liberties implied by the stated rights - that protected a right to privacy, including a right to family planning.
The most important application of privacy rights came in the area of abortion as first ruled by the Court in Roe v. Wade in 1973. Jane Roe (whose real name was Norma McCorvey) challenged the Texas law allowing abortion only to save the life of a mother. Texas argued that a state has the power to regulate abortions, but the state overruled, forbidding any state control of abortions during the first three months of a pregnancy and limiting state control during the fourth through six months. The justices cited the right to privacy as the liberty to choose to have an abortion before the baby was viable. The Roe v. Wade decision sparked the controversy that surrounds abortion today.
CRIME AND DUE PROCESS
Freedom from unreasonable searches and seizures is guaranteed by the Fourth Amendment. To prevent abuse of police making arrests, the Constitution requires that searches of private property are permissible only if probable cause exists that indicates that a crime may have taken place. An important limitation was set on police searches by
Mapp v. Ohio, a 1961 case in which the police broke into the home of Dollree Mapp, a woman under suspicion for illegal gambling activities. Instead, they found obscene materials and arrested Mapp for possessing them. She appeal her case, claiming that the Fourth Amendment should be applied to state and local governments, and that the evidence had been seized illegally. The police, she claimed, had no probable cause for suspecting her for the crime she was arrested for. The court ruled in her favor, thus redefining the rights of the accused.
The Fifth Amendment forbids self-incrimination, stating that no one "shall be compelled to be a witness against himself." The rights for protection against self-incrimination originated from a famous 1966 Court decision Miranda v. Arizona. Ernesto Miranda was arrested as a prime suspect in the rape and kidnapping of an eighteen year old girl. During a two hour questioning by the police, he was not advised of his constitutional right against self-incrimination nor his right to counsel. His responses led to his conviction, but the Supreme Court reversed it, and set the modern Miranda Rights: to remain silent, to be warned that responses may be used in a court of law, and to have a lawyer present during questioning.
The right to counsel, always ensured by the Sixth Amendment, was not widely practiced until established in Gideon v. Wainwright in 1963. The case involved Clarence Gideon, who was given five years in jail by a Florida court for robbing a vending machine of small change. He was too poor to hire a lawyer, and the court did not provide him one. He researched his rights in prison and wrote a pauper's petition to the Supreme Court. the Court ruled in his favor, and he was released, retried, and acquitted. Thousands of others across the country were released as well. The court later ruled that a lawyer must be provided whenever imprisonment could be imposed.