Civil rights and liberties

Description: The phrase “civil liberties” refers to the personal freedoms that are guaranteed against government infringement. In contrast, “civil rights” denotes those individual and group rights that require governmental action for enforcement.

Relevant Amendments: First through Ninth, Fourteenth

Significance: The words “liberty” and “right” can be used interchangeably to some extent, without attacking the meaning they have acquired over the ages. The “Bill of Rights” in the US Constitution is, in fact, a list of liberties. However, the phrases “civil liberties” and “civil rights” have now acquired sufficiently distinctive meanings, each with a history of its own. They should be treated as discrete concepts.

“Congress shall make no law respecting an establishment of religion.” So begins the First Amendment. The Bill of Rights is a repository of people’s liberties andt it defines the areas where people are to be left to live their lives free of impediments. The word “Congress” is never again mentioned in this document, nor is there any reference to any other legislative power. Writing in Barron v. Baltimore in 1833, Chief Justice John Marshall observed there was a unity of purpose in these amendments, for they were proposed and ratified at the same time. As such, the rights guaranteed in these amendments were all to be “understood as restraining the power of the general government, not as applicable to the States.” In short, these freedoms did not provide any protection against state and local abuses.

Background

The person who gave us the Bill of Rights had warned us the principal source of mischief against personal liberties would be the states and their local communitiesnot the national majority. If James Madison could have had his way, the Bill of Rights would have applied to the states as well. His original draft had an amendment that had the following words: “No state shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” Madison conceived this paragraph to be “the most valuable amendment on the whole list.” However, the conservatives in the Senate were afraid of what the new central government might do someday to undermine the sovereignty of the states which they represented. Madison’s favorite amendment was rejected decisively.

Eventually, the nation came around to embracing Madison’s visionmore out of desperation in the wake of the Civil War than as a concession to his argument. Not only did the Fourteenth Amendment define US citizenshipwith a view to protecting the rights of individuals from abuse by local majoritiesit also contained this critical language. Nevertheless, the actual use of the Bill of Rights against state and local abuses did not materialize until 1925, whenin Gitlow v. New Yorkthe Supreme Court began to read, in earnest, certain provisions of that document into the due process clause of the Fourteenth Amendment in a series of actions known as “selective incorporation.”

The Fourteenth Amendmentratified in 1868did more than pave the way for the “nationalization of the Bill of Rights.” Like the other two Civil War amendments, the Thirteenth (1865) and the Fifteenth (1870) banning slaveryprohibiting the denial of the right to vote for reasons of “race, color, or previous condition of servitude." the Fourteenth Amendment called the nation’s attention to a whole new problem known as “civil rights.” African Americans were no longer slaves, but they were not yet free, certainly not equal with White people. They were entitled to their rightsowever, who was to deliver to them those rights?

Congress responded to this challenge with a series of legislative enactmentsall under the “Civil Rights Act”beginning with the bold, sweeping and highly controversial Civil Rights Act of 1866which defined citizenship and guaranteed rights related to contracts and property ownership. The fierce debate over the constitutionality of this law did not end until Congress passed a constitutional amendment which included some of these controversial provisions. The Fourteenth Amendment became the basis for Congress’s second major assault upon racial injustice.

The Civil Rights Act banned all discrimination in public facilities and accommodations owned and operated by corporations and private individuals. However, the Supreme Court declared the law unconstitutional in the Civil Rights Cases of 1883 on the grounds that the amendment’s prohibitions were aimed at the states, not corporations and private individuals. The court said Congress had no power to prescribe criminal penalties for private acts of discrimination under this amendmentagainst bitter dissent from Justice John Harlanwho read the three Civil War amendments far more broadly than his brethren.

Congress did not enact another civil rights law until the Civil Rights Act of 1957. The 1957 and 1960 Civil Rights Acts made the Justice Department the command post in the war on racial discrimination. Then came the historic Civil Rights Act of 1964by far the most comprehensive civil rights law in the nation’s history. Although it was intended an enforcement of the Fourteenth Amendment’s equal protection mandate, its sweeping public accommodations provisions in Title II had to be given some other justification so as not to repeat the mistake of 1875. This time, Congress decided to rely on the commerce clause, and later that year, in two separate cases, Title II of the 1964 Civil Rights Act was handily upheld by the Supreme Court as an exercise of Congress’s commerce power. With that ruling, the Supreme Court left the 1883 precedent undisturbedmerely noting that it was not “apposite” here. The 1964 Civil Rights Act was followed a year later by another monumental statutethe Voting Rights Act contested provisionsdealing with literacy devices and federal examinerswere upheld by the Supreme Court in 1966 in South Carolina v. Katzenbach as a “valid” exercise of the federal government’s power under the Fifteenth Amendment.

Civil Rights and Liberties in the Twenty-First Century

In the mid-2020s, the United States experienced an era of political division that cyclically appeared through its history as a nation. The American populace was polarized on many issues, including many pertaining to concepts of civil rights and liberties. Despite these divisions, data indicated Americans adhered to common, overarching beliefs concerning these rights. For example, in a 2024 Associated Press poll, respondents indicated that 91 percent agreed that the concept of equal protection under the law helped define the American identity. The right to vote was favored by 91 percent of those polled, freedom of speech by 90 percent, the right to privacy 88%, freedom of religion by 83%, and freedom of the press by 77%.

While Americans were united in supporting these freedoms, the political frictions emanated from divisions on what defined civil rights, how they were applied, and who could exercise them. These differences were instrumental in directing government actions that enforced or withdrew from applying laws pertaining to civil rights. These sentiments were typically demonstrated down political party lines. For example, while the majority of Americans favored the right to vote, voting districts in many states were gerrymandered. Efforts were made to suppress the opposing voters from casting their preferences, many under the pretext of an alleged need to ensure ballot integrity. Other civil rights and liberties issues that marked this era included those pertaining to reproductive rights, freedom of expression, and the separation of church and state in public forums.

Bibliography

Brettschneider, Corey. Civil Rights and Liberties: Cases and Readings in Constitutional Law and American Democracy. Wolters Kluwer, 2013.

Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Duke University Press, 1986.

Fields, Gary, and Amelia Thomson Deveaux. "Yes, We’re Divided. But New AP-NORC Poll Shows Americans Still Agree on Most Core American Values." Associated Press, 3 Apr. 2024, apnews.com/article/ap-poll-democracy-rights-freedoms-election-b1047da72551e13554a3959487e5181a. Accessed 28 Aug. 2024.

Hall, Kermit L., et al. American Legal History: Cases and Materials. Oxford University Press, 1991.

Karst, Kenneth. Belonging to America: Equal Citizenship and the Constitution. Yale University Press, 1989.

Risen, Clay. The Bill of the Century: The Epic Battle for the Civil Rights Act. Bloomsbury Press, 2014.

Veit, Helen E., et al., editors. Creating the Bill of Rights: The Documentary Record from the First Federal Congress. Johns Hopkins University Press, 1991.

Wang, Hansi Lo. "3 Novel Legal Arguments by Republicans That Threaten the Voting Rights Act in 2024." NPR, 6 Jan. 2024, www.npr.org/2024/01/06/1222875311/voting-rights-act-section-2. Accessed 28 Aug. 2024.