This chapter examines the development and status of civil liberties and civil rights in the United States. The focus on Supreme Court decisions in this chapter should not detract from the fact that the Court is only one among many political actors that affect the status of rights and liberties in the nation. Nor should the focus on Court decisions leave the impression that the Court decides cases in isolation. The laws that the Court interprets and the decisions that it reaches are products of a complex interplay of structural, political, and governmental factors.


Re-interpreting Rights and Liberties in the Constitution (Case by Case)

Civil liberties refers to constitutional provisions, laws, and practices that protect individuals from government interference.

As embodied in the Bill of Rights, civil liberties are prohibitions against government actions that threaten the enjoyment of freedom. Civil rights refer to governmental responsibility for guaranteeing that all citizens are able to participate as equals in the practices of democratic life.

In the original Constitution, the framers protected few liberties from the national government and almost none from state governments. The solution to tyranny that the framers preferred was to give the national government little power with which to attack individual liberties.

Still, the framers singled out certain freedoms as too crucial to be left unmentioned. The Constitution prohibited Congress and the states from suspending the writ of habeas corpus, except when public safety demanded it because of rebellion or invasion, or from passing bills of attainder or ex post facto laws.

Many citizens found the proposed Constitution too stingy in its listing of liberties, leading James Madison to promise a bill of rights as a condition for passing the Constitution. The adoption of a bill of rights made the Constitution more democratic by enhancing political liberty and by guaranteeing a context of free political expression that made popular sovereignty possible. Later amendments continued this tradition of making the Constitution substantially more democratic.

Rights and Liberties in the Nineteenth Century

Property

The primacy of property rights over other rights and liberties in the body of the Constitution was reinforced by more than a century of judicial interpretation. During the years of the Marshall Court, the contract clause became a prime defense of property against states.  The Founders' attempt to protect the contractual agreements of private parties ballooned in the hands of the Marshall Court to bar virtually any changes in established property relations, especially those sought by the states.

The Taney Court (1836-1864) favored the use of property in ways that encouraged economic growth over simple enjoyment of property when the two were in conflict. The judicial preference for property rights was especially strong when it came to the rights of property with respect to slaves.

 Until the Civil War, for instance, the Court consistently upheld the right of slave holders to recapture fugitive slaves. In Dred Scott v. Sandford, the Taney Court ruled that the authors of the Declaration of Independence and the Constitution did not mean to include blacks among the citizenry, because blacks were regarded as inferior and thus had no rights which whites were compelled to respect.

After the Civil War, the Thirteenth Amendment to the Constitution outlawed slavery throughout the United States, settling the most divisive issue of the Nineteenth Century.

The Fourteenth Amendment reversed Dred Scott by making all people who were born or naturalized in the United States, black and white, citizens both of the United States and of
the states in which they resided.

The Fifteenth Amendment guaranteed black males the right to vote. Imposing as this constitutional structure sounds, the Supreme Court soon transformed it into a protection for property rights rather than individual rights.

The Supreme Court rendered the privileges and immunities clause virtually meaningless in the Slaughterhouse Cases (1873). The Court's majority found that the clause protected only the rights of citizens of the United States and not rights that were the responsibility of states.

Equal protection survived the Slaughterhouse Cases but soon lost all practical meaning. First, the Court said in the Civil Rights Cases (1883) that the Fourteenth Amendment gave Congress no power to prohibit discrimination unless it was practiced by state government.

Then the Court rendered even state-sponsored discrimination constitutional in Plessy v. Ferguson (1896). The Court said that states could separate races in intrastate railway cars if they provided equal facilities for the races. The Slaughterhouse Cases, Civil Rights Cases, and Plessy all severely undermined the Fourteenth Amendment.  While the Court was ruling that the Fourteenth Amendment offered little practical protection for civil rights and liberties, it was holding that it did protect property rights.

Most important was the use of the due process clause of the Fourteenth Amendment to protect business from state regulation. In Lochner v. New York (1905), for example, the Court held by a 5-4 majority that the right of an employer and employee to negotiate hours of work was part of the liberty, under the Fourteenth Amendment, to which no person could be deprived without due process of law.

Justice Oliver Wendell Holmes, Jr., penned one of his most famous dissents in Lochner. Holmes exposed the Court's opinion in Lochner as an unjustified defense of property rights against the will of the majority.

In sum, the Nineteenth century was an era in which the rights of property were expanded, refined, and altered to make them consistent with an emerging, dynamic, industrial economy. It was also an era in which the rights of women and blacks saw little progress and in which courts paid scant attention to the protection of civil liberties.

Nationalization of the Bill of Rights

Fourteenth Amendment to incorporate those liberties in the Bill of Rights that it deemed fundamental to democracy.

The Supreme Court has not, however, incorporated or nationalized every liberty in the Bill of Rights. Instead of total incorporation, the Court has pursued selective incorporation. The Court has only slowly added even traditional civil liberties to the constitutional obligations of states. The foundation of the nationalization of the Bill of Rights is, strangely enough, a footnote in an opinion, U.S. v. Carolene Products Company (1938), written by Justice Harlan Fiske Stone. Justice Stone spelled out the conditions in which the Supreme Court would not defer to the actions of the other branches or the states. First, courts would not presume the constitutionality of any laws that seemed to contradict any part of the Bill of Rights.

Second, courts would not presume the constitutionality of any law that seemed to restrict democratic processes (such as limiting the right to vote or the dissemination of information). Finally, courts would not presume the constitutionality of laws that discriminated against racial, ethnic, and religious minorities.  

The Carolene Products case announced that most legislative enactments would fall under ordinary scrutiny by the courts, presuming their constitutionality. Enactments restricting liberties, limiting the democratic process, or discriminating against minorities, however, would fall under strict scrutiny by the courts.

Because the Court would presume them unconstitutional, the burden would fall on the authors of such enactments to prove otherwise by showing that the reasons for the enactments were
compelling and necessary

Freedom of Speech

The first incorporation of the Bill of Rights occurred with respect to free speech in the case of Gitlow v. New York (1925).

A majority on the Supreme Court held that although the state of New York was bound by the First Amendment, the state had not violated the amendment by incarcerating Benjamin Gitlow for advocating militant overthrow of the American government in favor of communism.

While the Gitlow Case proved to be an important advance for civil liberties in the United States, it showed that the Court was still willing to allow the states wide latitude in controlling what the justices considered dangerous speech.

The Court's application of the First Amendment to the states provided the ACLU with opportunities to resist censorship and strangulation of dissent by states as well as by the national government. While victories remained rare, the Court's willingness to incorporate free speech encouraged and energized the ACLU.

The right of free speech has grown. In general, no government today may regulate or interfere with the content of speech without a compelling reason. For a reason to be compelling, government must show that the speech poses a clear and present danger that the government has a duty to prevent.

Difficult issues of expression persist, of course. Commercial expression such as advertising does not get full protection. Speech mixed with conduct may be limited if restrictions are narrowly and carefully tailored to reach the conduct while burdening speech as little as necessary. Symbolic expression may also receive less protection from the Court. Use of profanity or words that are likely to cause violence (fighting words) may also be regulated in some cases.

A major exception to the expansion of freedom of expression has involved the issue of internal security. In this century, periodic persecution of dissenters and radicals for their political views has occurred.

Censorship of dissent and protests during World War I proved to be a portent of abuses after the war. A similar period of hysteria followed World War II. It started when the Committee on Un-American Activities professed to see security risks in the Truman administration and Hollywood. The committee found no spies and contributed little to security, but managed to ravage lives and reputations. Senator Joseph McCarthy in particular exploited the issue for political gain.

Freedom of the Press

In Gitlow, the Supreme Court included freedom of the press as a fundamental right guaranteed by the Fourteenth Amendment. Incorporation of this aspect of the Bill of Rights seems reasonable in light of the importance of the free flow of information in a society that aspires to freedom and democracy.

In Near v. Minnesota (1931), the Court made good on the promise of Gitlow by invalidating the Minnesota Public Nuisance Law as a violation of freedom of the press. This sort of state action is called prior restraint, because it prevents publication before it occurs. This is precisely what freedom of the press does not allow.

Freedom of expression is often tested today by mass media that offend many or most Americans.  For example, pornography challenges the ability of citizens, legislatures, and courts to distinguish art from media that degrade humans.

Typically, communities and legislators try to regulate or eliminate pornography, while civil liberties lawyers and courts try to leave choices up to consumers and the market. Although the courts have held that obscenity is not protected by the First Amendment, the constitutional struggle to define obscenity continues.

Free Exercise of Religion

Religious freedoms were no more expansive before Carolene Products than freedom of speech, freedom of the press, or the rights of women or blacks. For the most part, Congress did not impede the exercise of religion, because it did not legislate much on the subject. States were not covered by the First Amendment, so free exercise of religion was either protected by state constitutions or not at all.

In Minersville School District v. Gobitis (1940), the Court upheld the expulsion of two school children who refused to salute the flag because it violated their faith as Jehovah's Witnesses. Two years late in Jones v. Opelika (1942), several justices publicly recanted their decision in Gobitis, calling the Court's earlier decision an acquiescence in repression of a religious minority. The next year, in West Virginia v. Barnette (1943), the Court reversed Gobitis and firmly established free exercise of religion as incumbent on states.

The core of the nationalized free exercise clause is that government may not interfere with religious beliefs. This is one of the few absolutes in U.S. constitutional law. Religious actions, however, are not absolutely protected. For example, the Court has upheld state laws outlawing the use of peyote (a hallucinogen) in Native American religious ceremonies.

Establishment of Religion

Freedom of conscious requires that government not favor one religion over another by granting it special favors, privileges, or status. It requires, in Jefferson's famous terms, "a wall of separation between church and state." Nevertheless, incorporation of the establishment clause has proven to be particularly messy because justices have had a difficult time determining what separation of church and state mean in practice.

The Supreme Court developed its modern interpretation of the establishment clause in Lemon v. Kurtzman (1971) in which the Court specified three conditions that a law must meet to avoid an unconstitutional establishment of religion.

First, the law must have a secular purpose. Although that secular purpose need not be the only or the primary purpose behind the law, the Court required some plausible, nonreligious reason for the law.

Second, the primary effect of the law must be neither to advance nor retard religion. The Court said it would assess the probable impact of a government action on religious neutrality.

Third, government must avoid excessive entanglements between state and religion.

Rights of the Accused

Although most Americans treasure the constitutional rights and liberties that protect innocent individuals from wrongful prosecution and imprisonment, they also want to control crime as much as possible. Balancing the two sentiments is not easy.

Persons alarmed by lawlessness tend to support whatever it takes to reduce crime, even if the rights or liberties of others must be restricted. Advocates of due process rights are more alarmed by the lawlessness of police and prosecutors. They see violations of rights and liberties as unnecessary and dangerous.

In recent decade, the Supreme Court has grown more conservative on matters dealing with the rights of the accused. During the 1950s and 1960s, the Warren Court expanded due process and preferred constitutional guarantees to efficient law enforcement. The Burger Court (1969-1986) preserved most of the basic due process decisions that the Warren Court crafted but limited the further growth of protection and introduced many exceptions. The Rehnquist Court (1986-present) reversed many due process protection.

Consider, for example, the Supreme Court's treatment of the Fourteenth Amendment, which secures the right of all persons against unreasonable searches and seizures, and allows search warrants only if police can specify evidence of serious lawbreaking that they reasonably expect to find.

In Mapp v. Ohio (1961), the Court enunciated the exclusionary rule to prevent police and prosecutors from using evidence gained through warrantless and unreasonable searches to convict people. The Warren Court demanded that police get warrants whenever the person to be subjected to a search had a reasonable expectation of privacy.

The Burger Court authorized a good faith exception to the exclusionary rule, under which prosecutors may introduce evidence obtained illegally if they can show that police relied on a warrant that appeared valid but later proved to be invalid. The Rehnquist Court went well beyond these exceptions.

In Murray v. United States (1988), it allowed prosecutors to use products of illegal searches if other evidence unrelated to the illegal evidence would have justified a search warrant.

The Court has grown more conservative on the Fifth Amendment protection against self-incrimination as well. The Warren Court determined that the guarantee against self-incrimination was useless at trial if police could coerce confessions long before the trial took place. To prevent police coercion, the Court detailed a stringent set of procedural guarantees, known as the Miranda rights.

Once detained by authorities, persons must be informed of their right to say nothing and to consult an attorney. If they cannot afford an attorney, they have the right to have one appointed for them. Although the Burger Court upheld Miranda, it allowed exceptions. The Rehnquist Court extended those exceptions in holding that a confession coerced by threats of violence can sometimes be considered harmless error that does not constitute self-incrimination.

The Supreme Court has also grown more conservative on the issue of capital punishment. In Furman v. Georgia (1972), a divided Court found that the use of the death penalty as it was then administered constituted "cruel and unusual punishment."

The Court did not rule, however, that capital punishment in and of itself was unconstitutional. Subsequently, Congress and 70 percent of the states passed new death-penalty laws, most of which the Court found acceptable under the Constitution. In recent years, the Rehnquist Court has greatly expedited the use of the death penalty with a series of decisions reducing the ability of death-row inmates to file appeals to delay their executions.

Civil Rights for Racial Minorities

The legal and political battles waged by the Civil Rights movement eventually pushed the Court, the president, and Congress to take the equal protection clause of the Fourteenth Amendment seriously.

The first major victory for the Legal Defense Fund of the NAACP concerned property. In Buchanan v. Warley (1917), the Supreme Court unanimously overturned a segregation statute by saying that no state could prohibit blacks and whites from buying or selling real estate.

In 1944, amidst World War II and the NAACP's campaign to rid the nation of segregation, the Supreme Court finally declared that race was a suspect classification that demanded strict judicial scrutiny.

The great breakthrough came in Brown v. Board of Education (1954), when a unanimous Court declared that separate but equal was constitutionally unacceptable in public schools. Brown was a constitutional revolution. The drive to protect the rights of racial minorities has occupied the nation ever since.

The main doctrine on discrimination is straightforward. Any use of race in law or government regulations will trigger strict scrutiny from the courts. Recall that the state can only defend its acts under strict scrutiny if it can produce a compelling state interest for which the act in question is  necessary means. Almost no law survives this challenge, so laws that discriminate on the basis of race are dead.

The Supreme Court has also dealt with affirmative action and racial quotas. In Regents v. Bakke (1978), the Court authorized a compromise on affirmative action programs. Although the Court ruled that strict racial quotas in medical school admissions violate the Constitution, the Court ruled that race could be used as one factor in admissions decisions. The Court has also said that race conscious actions are acceptable if they are used to remedy the effects of past discrimination.

Recently, the Court has subjected laws that are not color- blind to strict scrutiny. Although the Court has upheld affirmative action programs designed to redress specific rights violations, it has struck down programs aimed at societal racism in general. The Court has undermined existing penalties for racial discrimination by making it very difficult to challenge hiring or promotion practices. Congress has reacted to the Court's actions by passing the Civil Rights Act of 1991.

The debate over affirmative action pits two visions of social justice. The advocates of the perpetrator perspective believe that it is the duty of the law to detect and punish individuals and government officials who discriminate against other individuals. This perspective addresses overt discrimination and what must be done to prevent its practice.

In contrast, individuals concerned with institutional racism take the victim perspective. In this view, the victims of discrimination need and deserve assistance. While the perpetrator perspective merely demands that laws and government stop discriminating, the victim perspective demands that government act to remedy and compensate for past wrongs. At present, law, politics, and government seem to be more comfortable with the perpetrator perspective. 

Civil Rights for Women

Despite its egalitarian reputation, the Warren Court did not advance the cause of women's rights. The Burger Court considered sex discrimination, opting to apply neither ordinary scrutiny nor strict scrutiny. Instead, the Court adopted a new standard, called intermediate scrutiny. Under intermediate scrutiny, government enactments that relied on gender would be constitutional if the use of gender were substantially related to an important objective.

Intermediate scrutiny defines a legal test somewhere between strict and lax. The improvement of women's rights under the doctrine of intermediate scrutiny, however, is less than what many in the women's movement would prefer.

One of the most controversial decisions of the Burger Court was Roe v. Wade (1973). This case transformed abortion from a legislative issue into a constitutional issue; from a matter of policy into a matter of rights. The majority opinion written by Justice Harry Blackmun prohibited states from interfering with a woman's decision to have an abortion in the first two trimesters of her pregnancy. He based his opinion on the right to privacy, even though no such right is explicitly mentioned in the Constitution.

The Court's decision in Roe failed to resolve the issue. The ruling energized pro-life groups, who organized to fight abortion rights. Single-issue antiabortion politics surfaced in 1976 and subsequent elections, and became an important pillar of the Reagan movement. The antiabortion forces that helped elect Ronald Reagan insisted that he appoint pro-life, antiabortion judges to the federal courts. He did so with great effectiveness. In the late 1980s, the Court responded to antiabortion politics by substantially restricting abortion rights.

Comparable worth was another gender issue drawing attention during the 1980s. Sometimes called pay equity, the concept of comparable worth is based on the observation that jobs and careers in which women have traditionally predominated tend to pay less on average than those in which men have traditionally predominated.

Women earn, on average, about 30 to 40 percent less than men. They also dominate some of the worst-paying jobs. Although the proponents of comparable worth have failed to score any major legislative or judicial victories, the growing importance of women in the work place and in polling places may spur politicians and officials to redress some of the more obvious inequalities.  Another issues of concern to many women and men is that of sexual harassment in the work place. One poll reports that 21 percent of women have experienced sexual harassment at work while 41 percent claim to know someone who has been the victim of such treatment. The courts, regulatory agencies, and legislative bodies are gradually defining the law in this area.

Future of Rights and Liberties

This review of the history of civil liberties and civil rights highlights not only the role of structural and political factors but also the importance of the composition of the Supreme Court (which is itself a product of the political process).

The Constitution leaves justices sufficient room to enlarge or diminish liberty and equality in the United States. The greatest expansion of liberties and rights in this century was undertaken by the Warren Court. The Burger Court was nearly as activist as the Warren Court but less certain in its direction. Chief Justice Warren Burger kept a divided Court on a mostly pragmatic course, expanding or restricting liberties and rights case by case. It is too early to evaluate the Rehnquist Court, but we do know that most  justices on the Court were selected by conservative Presidents Reagan and Bush to roll back many of the civil liberties and civil rights decisions of the Warren Court.

Liberty, Rights, vs. Democracy

The U.S. has undergone democratization in an uneven fashion, even though the enjoyment of liberties and rights has significantly expanded. Although the Supreme Court been responsible for much of the progress, it has acted for the most part only when pushed by popular pressures generated through elections, public opinion, civil liberties and civil rights organizations, and social movements.

At its finest moments, the Court has realized its mission to protect rights and liberties, and recognized that no other political institution is likely to undertake such a thankless task. More often, however, history shows that the elected branches and the public must embrace rights and liberties before they can become part of constitutional practice. Though the Court occasionally reminds the other branches and the public of constitutional ideals, it usually follows politics and is unwilling to innovate.