Civil liberties in the United States

Significance: Civil liberties represent one of the most basic of all conceptions of individual human rights.

There is a critical distinction between civil liberties and civil rights. Civil liberties are seen as negative promises by (or negative commands to) the government not to do certain things. The US Constitution’s Article I, sections 9 and 10 (the prohibitions against the federal and the state governments respectively) and the entire Bill of Rights (the first ten amendments) are clearly lists of negative commands. The First Amendment, “Congress shall make no law respecting an establishment of religion,” is only one of a long list. Other negative commands in the Bill of Rights include “No soldier . . . shall be quartered in any house. . . . No person shall be held to answer for a capital . . . crime, unless on indictment. . . . Excessive bail shall not be required.”

Still, negative commands would not help much if a government did not also act positively to protect its citizens from improper acts by others. Purely negative commands need to be balanced with certain affirmative obligations, and these are properly known as civil rights. These become particularly important to members of groups that suffered discrimination in the past, such as African Americans, Asian Americans, Hispanic Americans, or women. Naturally, civil liberties and civil rights also overlap: A negative promise that the government will not interfere with free speech implies an affirmative promise that it will protect individuals who express their opinions, even in the face of majorities that wish to silence them. Still, distinguishing between the affirmative and the negative characteristics of two concepts is useful.

The Need for Negative Promises

The best way to understand the distinction between negative promises and affirmative guarantees is to compare the mainly negative wording of the US Constitution with the constitution written by Joseph Stalin for the Soviet Union in 1936. The Soviet constitution was revised a number of times before the collapse of the Communist regime in the early 1990s, but each version followed the general provisions of Stalin’s 1936 draft. At the time of writing, Stalin had already defeated all rivals and stood at the height of his power. It would be easy to dismiss this document by saying it was mere propaganda, but it is still instructive to see how its provisions were worded.

Stalin’s constitution contained a “Bill of Rights and Duties”—affirmative promises of numerous material benefits not provided by the US Constitution. Among these were “the right to work,” or guaranteed full adult employment, and a “right to rest and leisure,” including a maximum forty-hour workweek, lengthy paid vacations, and resorts for working people. Also guaranteed were rights to education, medical care, and maintenance in old age. Women were granted “equal rights”—a promise still not explicitly included in the US Constitution.

Stalin’s constitution also promised religious freedom and free expression, typically called “civil liberties.” Unlike the US Bill of Rights wording, “Congress shall make no law,” Stalin’s promise is affirmatively worded: “In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the Soviet Union are guaranteed by law: (a) freedom of speech; (b) freedom of the press; (c) freedom of assembly, including the holding of mass meetings; (d) freedom of street processions and demonstrations. These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities, and other material requisites for the exercise of these rights.”

Stalin’s free-expression promise is remarkably generous, providing for an unrestrained right to “street processions and demonstrations,” while the US Constitution limits its protection only to those who “peaceably assemble.” Still more generous is the promise to supply paper and printing presses. This is in stark contrast to the situation in the United States, where exercising “free” speech can cost considerable money for media advertising. Yet the extensive record of persecution of dissident Russian writers belies Stalin’s promises. Why did Stalin’s constitution not protect individuals? In fact, the innocent-sounding, presumably nonbinding introductory clause, “In conformity with the interests of the working people, and in order to strengthen the socialist system,” acted as a limit on the promise of free expression that followed. Only press or speech that was in the “interests of the working people” or “strengthen[ed] the socialist system” was ever allowed in the Soviet Union.

Stalin’s constitution promised a whole range of economic benefits, far beyond the financial ability of even the wealthiest government to provide for all citizens. Clearly, this document was a mere wish list for the future, not a constitution.

Although the US Bill of Rights contains only negative promises, those promises are far more effective, for it costs nothing for Congress not to pass a law. Under Stalin, speech was declared “free,” but one could not even buy it. In the United States, speech may cost money, but it is freely available in the marketplace. Starting with a broad affirmative promise, the Soviet Union ended with no free speech at all. The United States began with a limited, negatively worded promise of free speech and has found itself with an overwhelming flood of information.

Historical Trends in Court Cases

Originally, the most important purpose of the US Bill of Rights was to protect the states from the danger of an overly powerful national government. The period from the adoption of the US Constitution in 1789 to the outbreak of the Civil War in 1861 was devoted to protecting the state governments (and only indirectly the citizens) from the federal government. During this period, perhaps the most important of the entire Bill of Rights was the Tenth Amendment’s promise that “the powers not delegated to the [national government] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The First Amendment begins with the phrase “Congress shall make no law,” clearly making the federal government its only target; none of the other nine original amendments, however, includes this language. One might assume that the intention was for the entire Bill of Rights to apply to only the federal government, but, given the doubt, it was natural for someone to test this assumption.

Perhaps the most important test case to determine to which level of government the Bill of Rights applied was the US Supreme Court case of Barron v. Baltimore (1833). The city of Baltimore paved a number of streets and dumped leftover construction materials into the water near a wharf that Barron owned. The floor of the bay was raised so high that ships could no longer use Barron’s Wharf; thus he was deprived of his property interest in his livelihood without due process or just compensation. Barron decided to sue the city of Baltimore to recover damages. Baltimore was a subunit, however, under the “sovereign” state of Maryland, which did not provide the same guarantee against eminent domain actions which the federal constitution included. Because Barron could not succeed in the Maryland courts, he turned to the federal courts, only to discover upon reaching the Supreme Court that it regarded the Fifth Amendment as applying only to the federal government. In effect, Barron was told that if the Maryland constitution did not offer him protection, he could not receive it from the federal government. With this decision, the Supreme Court declared that the first ten amendments to the Constitution applied only to the federal government and not to the states. This reflected the reality of the situation before the Civil War, especially with regard to the slavery of African Americans in southern states. No slave could claim the right of free speech by citing the First Amendment.

After the Civil War, Congress sought to reverse the Barron decision with the Fourteenth Amendment, which begins: “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.” The point was to undo the notion of citizenship established in Barron. The language of this amendment certainly appears to mean that all persons, regardless of race, were to be citizens of both the United States and the state in which they lived and that citizenship could not be denied to African Americans as it had been in southern states. Thus the US Constitution was to penetrate the boundaries of each state and extend to each individual citizen.

Then the Fourteenth Amendment, in negative language, states, “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.” Arguably, this section of the Fourteenth Amendment applies the negative commands contained in the Bill of Rights and elsewhere in the Constitution to the citizens of each state. Once the Fourteenth Amendment was ratified, it would appear that Barron had been overturned by an act of the American people.

The Changing Composition of the Supreme Court

Though the Supreme Court did not initially interpret the Fourteenth Amendment in this way, it started to do so beginning in the 1920s. The Court has been guided by the so-called doctrine of selective incorporation, which holds that parts of the Bill of Rights are so basic to the notion of due process that the states cannot deny them to any persons residing within their borders. Thus, the words “Congress shall make no law” now mean that no government within the United States shall make any law that abridges the freedom of speech or of the press.

For most civil liberties, the process began in 1925 with the case of Gitlow v. New York, in which the Court applied the free-speech section of the First Amendment to the states. This act of selective incorporation set in motion a set of cases that applied most of the rest of the First Amendment to the states. In Near v. Minnesota (1931), the Court applied the free press section, and Hague v. Congress of Industrial Organizations (1939) applied the assembly section to the states. Freedom of religion came partly in Hamilton v. Regents of the University of California (1934) and more completely in Cantwell v. Connecticut (1940). The nonestablishment of religion followed in Everson v. Board of Education of Ewing Township (1947). These cases maintained that the First Amendment (at least) had such a crucial relationship to due process that states could not deprive the citizens of its benefits without denying them due process.

The Court did not advance much toward incorporation until Earl Warren was named chief justice in 1953, for only portions of the First Amendment and a single clause of the Fifth Amendment had been applied to the states by then. Warren joined Associate Justices Hugo L. Black, William O. Douglas, and (partially) Tom C. Clark, who had long argued for a much fuller incorporation, in support of the application of more sections of the Bill of Rights. Later, the appointment of William J. Brennan (and others) made it possible for the Court to incorporate eventually nearly all of the Fourth, Fifth, Sixth, and Eighth Amendments—that is, nearly all the important sections of the Bill of Rights. The Second Amendment—the right to keep and bear arms—was incorporated as recently as 2010 in McDonald v. City of Chicago. Thus, the civil liberties familiar to US citizens against the actions of both the federal and state governments are a rather recent addition to the understanding of civil liberties in the United States.

Bibliography

Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. U of Kansas P, 2003.

Berger, Raoul. The Fourteenth Amendment and the Bill of Rights. U of Oklahoma P, 1989.

"The Bill of Rights: A Brief History." American Civil Liberties Union, https://www.aclu.org/other/bill-rights-brief-history. Accessed 18 Apr. 2017.

Hickok, Eugene W., Jr., editor. The Bill of Rights: Original Meaning and Current Understanding. U of Virginia P, 1991.

Liptak, Adam. "Civil Liberties Today." The New York Times, 7 Sept. 2011, http://www.nytimes.com/2011/09/07/us/sept-11-reckoning/civil.html. Accessed 18 Apr. 2017.

Walker, Samuel. Civil Liberties in America: A Reference Handbook. ABC-CLIO, 2004.