Civil rights and liberties and the Supreme Court

Description: The phrase “civil liberties” refers to the personal freedoms that are guaranteed against government infringement. “Civil rights” refers to the rights of minority groups whose protection is understood to require positive government action.

Significance: The words “liberty” and “right” can be used interchangeably to some extent, without doing violence to the meaning they have acquired over the ages. The “Bill of Rights” in the U.S. 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 in that it defines the areas where people are to be left alone to live their lives free of impediments. The word “Congress” is never again mentioned in this document, but neither is there any reference to any other legislative power. Writing in Barron v. Baltimore in 1833, Chief Justice John Marshall observed that 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.

The person who gave us the Bill of Rights had warned us that the principal source of mischief against personal liberties would be the states and their local communities, and not 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 vision, though more out of desperation in the wake of the Civil War than as a concession to his argument. Not only did the Fourteenth Amendment define U.S. citizenship, with a view to protecting the rights of individuals from abuse by local majorities, it also contained this critical language, which would have pleased the Father of the Bill of Rights: “No State shall make or enforce any law which shall abridge . . .” Nevertheless, the actual use of the Bill of Rights against state and local abuses was not to materialize until 1925, when, in Gitlow v. New York, the 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 which would come to be known as “selective incorporation.”

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

Congress responded to this challenge with a series of legislative enactments, all under the fitting name of “Civil Rights Act,” beginning with the bold, sweeping and highly controversial Civil Rights Act of 1866, which 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. Enacted in the name of the amendment’s equal protection clause, the 1875 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. Congress had no power to prescribe criminal penalties for private acts of discrimination under this amendment, said the Court, against a bitter dissent from Justice John Harlan, who read the three Civil War amendments far more broadly than his brethren.

Congress did not enact another civil rights law until 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 1964, by far the most comprehensive civil rights law in the nation’s history. Although it was intended on the whole as 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. Congress this time 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 undisturbed, merely noting that it was not “apposite” here. The 1964 Civil Rights Act was followed a year later by another monumental statute, the Voting Rights Act, whose contested provisions, dealing with literacy devices and federal examiners, were 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.

Bibliography

Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Duke UP, 2012.

Hall, Kermit L., et al. American Legal History: Cases and Materials. 5th ed. Oxford UP, 2017.

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

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