Terms
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Civil Liberties
Civil Rights Bill of Attainder Ex Post Facto Laws Habeas Corpus Bill of Rights 1st Amendment de jure segregation de facto segregation Loving v. Virginia Alien and Sedition Acts |
2nd Amendment
4th Amendment 5th Amendment 9th Amendment 10th Amendment elastic clause Rational Basis Test Strict Scrutiny Affirmative Action Grandfather Clauses Plessy v. Ferguson |
13th Amendment
14th Amendment 15th Amendment 24th Amendment Due Process Equal Protection Clause Disenfranchisement Literacy Tests Jim Crow Laws Black Codes Brown v. Board of Education Civil Rights Act of 1964 |
Civil Liberties - individual rights protected by law from unjust governmental or other interference
Civil Rights - the rights of citizens to political and social freedom and equality.
Civil Rights - the rights of citizens to political and social freedom and equality.
Civil Liberties
Civil liberties are typically seen as limitations on government power, intended to protect freedoms that governments may not legally intrude on. For example: The First Amendment denies the government the power to prohibit "the free exercise" of religion; the government CANNOT keep or forbid any citizen from following a religion of their choice.
Civil Rights
Civil Rights on the other hand, are guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics. For example, schools cannot bar students from attending based on race.
Civil rights and civil liberties were at the core of thought when Thomas Jefferson created the Declaration of Independence. He drew from John Locke the idea of unalienable rights and applied them to Americans.
Even within the Constitution (besides the Bill of Rights which I'll talk about later), there are guarantees that protect civil liberties. Article 1, Section 9, limits the power of Congress in three ways: it prohibits the passage of bills of attainder (bill of attainder is a laws that convicts or punishes someone for a crime without a trial, a tactic the king of England had used frequently); it prohibited ex post facto laws, or being punished for a crime that WAS NOT a crime at the time of the event. It'd be like not wearing a seatbelt in the 1980s and then getting a ticket for it ten years later when it became a law; the third way that Congress has limited power in regards to civil liberties is that it has a VERY LIMITED ability to suspend the writ of habeas corpus. Habeas Corpus is used to demand a neutral judge to decide whether someone has been lawfully detained. This means basically that if habeas corpus is suspended, you could get arrested for anything and not have access to a lawyer, may not get a speedy trial, no jury, and etc. It is typically only ever allowed during war time. For example, during WWII President Roosevelt suspended habeas corpus to detain and put in camps, Japanese Americans.
Even within the Constitution (besides the Bill of Rights which I'll talk about later), there are guarantees that protect civil liberties. Article 1, Section 9, limits the power of Congress in three ways: it prohibits the passage of bills of attainder (bill of attainder is a laws that convicts or punishes someone for a crime without a trial, a tactic the king of England had used frequently); it prohibited ex post facto laws, or being punished for a crime that WAS NOT a crime at the time of the event. It'd be like not wearing a seatbelt in the 1980s and then getting a ticket for it ten years later when it became a law; the third way that Congress has limited power in regards to civil liberties is that it has a VERY LIMITED ability to suspend the writ of habeas corpus. Habeas Corpus is used to demand a neutral judge to decide whether someone has been lawfully detained. This means basically that if habeas corpus is suspended, you could get arrested for anything and not have access to a lawyer, may not get a speedy trial, no jury, and etc. It is typically only ever allowed during war time. For example, during WWII President Roosevelt suspended habeas corpus to detain and put in camps, Japanese Americans.
The Framers of the Constitution got into a lot of arguments over civil liberties. The Federalists felt that limitations of found in Article 1, Section 9, would be enough that no Bill of Rights was actually needed. Alexander Hamilton said in the Federalist Papers that it would be tedious and not worth the trouble of listing every individual freedoms protected by the Constitution. Hamilton went on to say that it might be dangerous to have a specific list because any that were left out might be assumed to NOT be a right at all, even if left off on accident.
Anti-Federalists such as Thomas Jefferson were not so confident that Congress wouldn't some day intrude on the rights of the citizens unless their liberties were specifically mentioned. For example, the elastic clause in Article 1, Section 8 of the Constitution give Congress implied or nonlisted powers, which, anti-federalists believed could be used to overreach and violate the civil liberties of citizens. It is good that the anti-federalists demanded a Bill of Rights because even the Framers could not have foreseen the enormous expansion of powers that Congress possesses today. Madison relented and agreed to propose several amendments to the Constitution that would list specific civil liberties reserved for citizens. Ten of those suggestions were successfully passed by 75% of the Constitutional Convention delegates and became the Bill of Rights.
Bill of Rights
The first ten amendments to the Constitution, which are rights and liberties PROTECTED via those amendments.
1st Amendment - Right to freedoms of religion and speech; right to assemble and to petition the government for redress of grievances.
2nd Amendment - Right to keep and bear arms to maintain a well-regulated militia, shall not be infringed. Infringed means threatened or limited.
3rd Amendment-Right to not house soldiers during a time of war.
4th Amendment - Right to be secure from unreasonable search and seizure
5th Amendment - Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself.
6th Amendment - Right to a speedy trial by jury.
7th Amendment - Right to a jury trial in civil cases
8th Amendment - Right to not face excessive bail, excessive fines, or cruel and unusual punishment
9th Amendment - Rights retained by the people, even if they are not specifically mentioned in the
Constitution.
10th Amendment - States' rights to powers not specifically delegated to the federal government
2nd Amendment - Right to keep and bear arms to maintain a well-regulated militia, shall not be infringed. Infringed means threatened or limited.
3rd Amendment-Right to not house soldiers during a time of war.
4th Amendment - Right to be secure from unreasonable search and seizure
5th Amendment - Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself.
6th Amendment - Right to a speedy trial by jury.
7th Amendment - Right to a jury trial in civil cases
8th Amendment - Right to not face excessive bail, excessive fines, or cruel and unusual punishment
9th Amendment - Rights retained by the people, even if they are not specifically mentioned in the
Constitution.
10th Amendment - States' rights to powers not specifically delegated to the federal government
Arguments For & Against a Bill of Rights
One of the most serious debates between the Federalists and the Anti-Federalists was over the necessity of limiting the power of the new federal government with a Bill of Rights. As we saw in this section, the Federalists believed a Bill of Rights was unnecessary—and perhaps even dangerous to liberty, because it might invite violations of rights that weren’t included in it—while the Anti-Federalists thought the national government would prove good at expanding its powers and influence and that citizens couldn’t depend on the good judgment of Congress alone to protect their rights.
Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, and the Anti-Federalists would soon be proved right that the national government might intrude on civil liberties. In 1798, at the behest of President John Adams during the Quasi-War with France, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These were drafted to allow the president to imprison or deport foreign citizens he believed were “dangerous to the peace and safety of the United States” and to restrict speech and newspaper articles that were critical of the federal government or its officials; the laws were primarily used against members and supporters of the opposition Democratic-Republican Party.
State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the Alien Enemies Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of public debate.
Should the government be able to restrict or censor unpatriotic, disloyal, or critical speech in times of international conflict? How much freedom should journalists have to report on stories from the perspective of enemies or to repeat propaganda from opposing forces?
Civil Liberties After the Civil War
Soon after slavery was abolished by the Thirteenth Amendment, state governments—particularly those in the former Confederacy—began to pass “black codes” that restricted the rights of former slaves and effectively relegated them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction in Congress demanded that the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the black codes. Their long-term solution was to propose two amendments to the Constitution to guarantee the rights of freed slaves on an equal standing with whites; these rights became the Fourteenth Amendment, which dealt with civil liberties and rights in general, and the Fifteenth Amendment, which protected the right to vote in particular. But, the right to vote did not yet apply to women or to Native Americans.
With the ratification of the Fourteenth Amendment in 1868, civil liberties gained more clarification. First, the amendment says, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which is a provision that echoes the privileges and immunities clause in Article IV, Section 2, of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, while others have argued that only some rights are extended. In 1999, Justice John Paul Stevens, writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause.
The second provision of the Fourteenth Amendment that pertains to applying the Bill of Rights to the states is the due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process). Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath (Sunday, a day of worship).
Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t specifically say so. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.
Conclusion on Civil Liberties
The Bill of Rights is designed to protect the freedoms of individuals from interference by government officials. Originally these protections were applied only to actions by the national government; different sets of rights and liberties were protected by state constitutions and laws, and even when the rights themselves were the same, the level of protection for them often differed by definition across the states. Since the Civil War, as a result of the passage and ratification of the Fourteenth Amendment and a series of Supreme Court decisions, most of the Bill of Rights’ protections of civil liberties have been expanded to cover actions by state governments
Civil Rights
The United States’ founding principles are liberty, equality, and justice. However, not all its citizens enjoy equal opportunities, the same treatment under the law, or all the liberties extended to others. Well into the twentieth century, many were routinely discriminated against because of sex, race, ethnicity or country of origin, religion, sexual orientation, or physical or mental abilities–deprivation of basic rights and opportunities and sometimes of citizenship itself.
The belief that people should be treated equally under the law is one of the cornerstones of political thought in the United States. Yet not all citizens have been treated equally throughout the nation’s history, and some are treated differently even today. For example, until 1920, nearly all women in the United States lacked the right to vote. Black men received the right to vote in 1870, but as late as 1940 only 3 percent of African American adults living in the South were registered to vote, largely due to laws designed to keep them from the polls.
Civil rights are, at the most fundamental level, guarantees by the government that it will treat people equally, particularly people belonging to groups that have historically been denied the same rights and opportunities as others. The proclamation that “all men are created equal” appears in the Declaration of Independence, and the due process clause of the Fifth Amendment to the U.S. Constitution requires that the federal government treat people equally. According to Chief Justice Earl Warren in the Supreme Court case of Bolling v. Sharpe (1954), “discrimination may be so unjustifiable as to be violative of due process.”
Additional guarantees of equality are provided by the equal protection clause of the Fourteenth Amendment, ratified in 1868, which states in part that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Thus, between the Fifth and Fourteenth Amendments, neither state governments nor the federal government may treat people unequally unless unequal treatment is necessary to maintain important governmental interests, like public safety.
We can contrast civil rights with civil liberties, which are limitations on government power designed to protect our fundamental freedoms. For example, the Eighth Amendment prohibits the application of “cruel and unusual punishments” to those convicted of crimes, a limitation on government power. As another example, the guarantee of equal protection means the laws and the Constitution must be applied on an equal basis, limiting the government’s ability to discriminate or treat some people differently, unless the unequal treatment is based on a valid reason, such as age. A law that imprisons Asian Americans twice as long as Latinos for the same offense, or a law that says people with disabilities don’t have the right to contact members of Congress while other people do, would treat some people differently from others for no valid reason and might well be unconstitutional. According to the Supreme Court’s interpretation of the Equal Protection Clause, “all persons similarly circumstanced shall be treated alike.”
Laws that treat one group of people differently from others are not always unconstitutional. In fact, the government engages in legal discrimination quite often. In most states, you must be eighteen years old to smoke cigarettes and twenty-one to drink alcohol; these laws discriminate against the young. To get a driver’s license so you can legally drive a car on public roads, you have to be a minimum age and pass tests showing your knowledge, practical skills, and vision. Perhaps you are attending a public college or university run by the government; the school you attend has an open admission policy, which means the school admits all who apply. Not all public colleges and universities have an open admissions policy, however. These schools may require that students have a high school diploma or a particular score on the SAT or ACT or a GPA above a certain number. In a sense, this is discrimination, because these requirements treat people unequally; people who do not have a high school diploma or a high enough GPA or SAT score are not admitted. How can the federal, state, and local governments discriminate in all these ways even though the equal protection clause seems to suggest that everyone be treated the same?
The answer to this question lies in the purpose of the discriminatory practice. In most cases when the courts are deciding whether discrimination is unlawful, the government has to demonstrate only that it has a good reason for engaging in it. Unless the person or group challenging the law can prove otherwise, the courts will generally decide the discriminatory practice is allowed. In these cases, the courts are applying the rational basis test. That is, as long as there’s a reason for treating some people differently that is “rationally related to a legitimate government interest,” the discriminatory act or law or policy is acceptable.
For example, since letting blind people operate cars would be dangerous to others on the road, the law forbidding them to drive is reasonably justified on the grounds of safety; thus, it is allowed even though it discriminates against the blind. Similarly, when universities and colleges refuse to admit students who fail to meet a certain test score or GPA, they can discriminate against students with weaker grades and test scores because these students most likely do not possess the knowledge or skills needed to do well in their classes and graduate from the institution. The universities and colleges have a legitimate reason for denying these students entrance.
It requires the government to demonstrate that treating men and women differently is “substantially related to an important governmental objective.” This puts the burden of proof on the government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina’s military college The Citadel must admit both male and female students. Furthermore, women are now allowed to have combat jobs in the military.
Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the strict scrutiny standard in these cases. Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be “narrowly tailored” to achieve the goal in question, and that it is the “least restrictive means” available to achieve that goal.
Finally, affirmative action consists of government programs and policies designed to benefit members of groups historically subject to discrimination. Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases.
Putting Civil Rights in the Constitution
The aftermath of the Civil War marked a turning point for civil rights. The Republican majority in Congress was enraged by the actions of the reconstituted governments of the southern states. In these states, many former Confederate politicians and their sympathizers returned to power and attempted to circumvent the Thirteenth Amendment’s freeing of slaves by passing laws known as the black codes. These laws were designed to reduce former slaves to the status of serfs or indentured servants; blacks were not just denied the right to vote but also could be arrested and jailed for vagrancy or idleness if they lacked jobs. Blacks were excluded from public schools and state colleges and were subject to violence at the hands of whites.
To override the southern states’ actions, lawmakers in Congress proposed two amendments to the Constitution designed to give political equality and power to former slaves; once passed by Congress and ratified by the necessary number of states, these became the Fourteenth and Fifteenth Amendments. The Fourteenth Amendment, in addition to including the equal protection clause as noted above, also was designed to ensure that the states would respect the civil liberties of freed slaves. The Fifteenth Amendment was proposed to ensure the right to vote for black men.
14th Amendment
The changes wrought by the Fourteenth Amendment were more extensive. In addition to introducing the equal protection clause to the Constitution, this amendment also extended the due process clause of the Fifth Amendment to the states, required the states to respect the privileges or immunities of all citizens, and, for the first time, defined citizenship at the national and state levels. People could no longer be excluded from citizenship based solely on their race. Although some of these provisions were rendered mostly toothless by the courts or the lack of political action to enforce them, others were pivotal in the expansion of civil rights.
15th Amendment
The Fifteenth Amendment stated that people could not be denied the right to vote based on “race, color, or previous condition of servitude.” This construction allowed states to continue to decide the qualifications of voters as long as those qualifications were ostensibly race-neutral. Thus, while states could not deny African American men the right to vote on the basis of race, they could deny it to women on the basis of sex or to people who could not prove they were literate.
The revocation (the taking away of) of voting rights, or disenfranchisement, took a number of forms; not every southern state used the same methods, and some states used more than one, but they all disproportionately affected black voter registration and turnout.
Perhaps the most famous of the tools of disenfranchisement were literacy tests and understanding tests. Literacy tests, which had been used in the North since the 1850s to disqualify naturalized European immigrants from voting, called on the prospective voter to demonstrate his (and later her) ability to read a particular passage of text. However, since voter registration officials had discretion to decide what text the voter was to read, they could give easy passages to voters they wanted to register and more difficult passages to those whose registration they wanted to deny. Understanding tests required the prospective voter to explain the meaning of a particular passage of text, often a provision of the U.S. Constitution, or answer a series of questions related to citizenship. Again, since the official examining the prospective voter could decide which passage or questions to choose, the difficulty of the test might vary dramatically between white and black applicants.
In some states, poorer, less literate white voters feared being disenfranchised by the literacy and understanding tests. Some states introduced a loophole, known as the grandfather clause, to allow less literate whites to vote. The grandfather clause exempted those who had been allowed to vote in that state prior to the Civil War–and their descendants–from literacy and understanding tests.
In states where the voting rights of poor whites were less of a concern, another tool for disenfranchisement was the poll tax. This was an annual per-person tax, typically one or two dollars (on the order of $20 to $50 today), that a person had to pay to register to vote. People who did not want to vote did not have to pay, but in several states the poll tax was cumulative, so if you decided to vote you would have to pay not only the tax due for that year but any poll tax from previous years as well. Because former slaves were usually quite poor, they were less likely than white men to be able to pay poll taxes.
Collectively, these discriminatory laws came to be known as Jim Crow laws.
The 24th Amendment eliminated poll taxes on January 23, 1964. “Do you know I’ve never voted in my life, never been able to exercise my right as a citizen because of the poll tax?” “Citizen” to Mr. Pike, interviewer, Atlanta, Georgia. American Life Histories, 1936 – 1940. More than 20 years after “Citizen” spoke those words, the poll tax was abolished. At the ceremony in 1964 formalizing the 24th Amendment, President Lyndon Johnson noted that: “There can be no one too poor to vote.” Thanks to the 24th Amendment, the right of all U.S. citizens to freely cast their votes has been secured.
1950s & 1960s
The landmark court decision of the judicial phase of the civil rights movement settled the Brown v. Board of Education case in 1954. In this case, the Supreme Court unanimously overturned its decision in Plessy v. Ferguson (Plessy v Ferguson ruled that separate but equal was Constitutional) as it pertained to public education, stating that a separate but equal education was a logical impossibility. Even with the same funding and equivalent facilities, a segregated school could not have the same teachers or environment as the equivalent school for another race. The court also rested its decision in part on social science studies suggesting that racial discrimination led to feelings of inferiority among African American children. The only way to dispel this sense of inferiority was to end segregation and integrate public schools.
Although de jure segregation, segregation mandated by law, had ended on paper, in practice (de facto segregation - unwritten laws of segregation, usually enforced by intimidation or violence), few efforts were made to integrate schools in most school districts with substantial black student populations until the late 1960s. Many white southerners who objected to sending their children to school with blacks then established private academies that admitted only white students.
An important case in Virginia, Loving v. Virginia, said that a Virginia law that outlawed interracial marriage was unconstitutional because it violated the 14th Amendment.
As the campaign for civil rights continued and gained momentum, President John F. Kennedy called for Congress to pass new civil rights legislation, which began to work its way through Congress in 1963. The resulting law (pushed heavily and then signed by President Lyndon B. Johnson after Kennedy’s assassination) was the Civil Rights Act of 1964, which had wide-ranging effects on U.S. society. Not only did the act outlaw government discrimination and the unequal application of voting qualifications by race, but it also, for the first time, outlawed segregation and other forms of discrimination by most businesses that were open to the public, including hotels, theaters, and restaurants that were not private clubs. It outlawed discrimination on the basis of race, ethnicity, religion, sex, or national origin by most employers, and it created the Equal Employment Opportunity Commission (EEOC) to monitor employment discrimination claims and help enforce this provision of the law. The provisions that affected private businesses and employers were legally justified not by the Fourteenth Amendment’s guarantee of equal protection of the laws but instead by Congress’s power to regulate interstate commerce.