Civil Liberties and the Bill of Rights

Power Points:

In this section, we discuss the concept of a civil liberty, the basic feature which establishes the concept of individual liberty. These are established on the national and state levels in the respective Bill of Rights. The national Bill of Rights was added to the Constitution as part of a understanding between the Anti-Federalists and the Federalists, while the Texas Constitution -- as do many state constitutions -- begins with a Bill of Rights. It is ironic, considering that James Madison and other Federalists thought the addition harmless, and probably unimportant, that the First Amendment contains the constitutional provisions most recognized by the general public. This is certainly a reflection of the degree to which people are protective of their individual freedom.

Here we hopefully come to an appreciation of these freedoms and the issues associated with them. We will also introduce the problems associated with the 14th Amendment, which effectively applied the freedoms established on the national level to the states. Many of the conflicts we deal with between the national and state government boil down to this amendment.

Goals: You should be able to answer the followign questions after completign this section
  • What is the definition of civil liberties?
  • What is the marketplace of ideas?
  • What role did the Magna Carta and the British Bill of Rights have in establishing the concept of individual liberty?
  • Why did the Federalists argue that a Bill of Rights was unnecessary?
  • What is a substantive liberty? Which amendment establish them?
  • What is a procedural liberty? Which amendments establish them?
  • How did the 14th Amendment apply the Bill of Rights to the states?
  • Understand the Selective Incorporation of the Bill of Rights to the states?
  • How might the Supreme Court decide that a freedom established in the Bill of Rights might not be enforceable in a specific case?
  • What are the arguments for and against interpreting the Constitution strictly or loosely?

What is a Civil Liberty Exactly?

The term civil liberties can be defined as the protections individuals have from the arbitrary powers of government. The concept generally begins with the idea that individuals have certain rights that should be immune from governmental interference. It establishes that people are separate from government, but people that are completely free can do things that may harm other individuals, or the overall community. So the concept contains within it is a dilemma, one that is worked out every time a controversy arises that pits individual actions against the interest of the general community.

Why Allow for Civil Liberties?

Why shouldn't a government assert complete control over its citizens? We can always point out that the theoretical basis of the American Constitution rests on the idea that freedom is an unalienable right which government is obligated to protect, but there is a tangible argument as well, one based on the advantage that the freedom to speak freely, or to create a marketplace of ideas provides to the countries that allow them to exist. John Stuart Mill argues that individuals are rational creatures who can best decide for themselves how to act in their own interests and that the only limitation that ought to exist is when it is necessary to protect society.

The Birth of Rights in Anglo-American History

The current state of rights in the United States can be considered to lie on a continuum heading back at least to the Magna Carta. Recall from earlier discussions that Magna Carta listed the ancient rights and liberties that the nobility claimed for themselves and that King John's reluctant signature was a written acceptance of those rights. The fact that they were written down was crucial, because it created a precedence for the recognition of certain substantive rights (widows could not be forced to remarry--especially the king) and procedural rights (the right of habeas corpus -- one could not be imprisoned without cause).

Further expressions and expansions of rights begin from this basis. As we discussed before, the English Bill of Rights, built up from the Magna Carta (which established protection primarily for the nobility), and itself provided a basis for greater expansions of liberties in the colonies in North America. It established that the executive branch was subject to the law, and had to yield certain powers (over the military and taxation) to parliament. The importance of this shift is that it established an institutional mechanism that protected the rights by beginning to establish a system of separated powers.

- Wikipedia: Magna Carta.
- WikiSource: Magna Carta.
- Wikipedia: English Bill of Rights.
- WikiSource: English Bill of Rights.

The Declaration of Independence and the Unalienable Rights.

When we read through the Declaration of Independence, we took special note of how the concept of rights in the document and the nature of the grievances listed in the document were built up from those written in British documents.

State Bills of Rights.

Most states added the Bill of Rights to their constitutions after they declared independence, although not all did. Generally, state bills of rights are more comprehensive and detailed than the U.S. Bill of Rights. Note for example the different ways that the U.S. and Texas Bill of Rights address the religion.

- History of the Thirteen Colonies.
- The Virginia Declaration of Rights.
- The Text of the Virginia Bill of Rights.
- The Texas Bill of Rights.

The Omission of a Bill of Rights from the Constitution.

The strongest argument that the Anti-Federalists were able to use against the Constitution was that it lacked a guarantee of certain limits on the power of the national government. The creation of a strong central government led opponents to worry about the potential arbitrary use of that power. Some state ratification conventions made the addition of a bill of rights a necessary condition for their agreement to ratify the document.

The arguments for and against the need for a bill of rights can be found in the following documents:
- Federalist 84.
- Anti Federalist 84.

The Federalists argued against the need for a Bill of Rights. One reason is that it was unnecessary since the national government had a system of checks and balances in place that would negate the arbitrary use of power, another was that the concept of delegated powers implied that the national government lacked the power to do any of the things that the Anti-Federalists wanted protection from. There were no powers, for example, granted to the national government regarding religion, speech or the press, so there was no need to worry about laws being passed about these matters. Moreover, the addition of a bill of rights could be dangerous since the listing of certain freedoms could lead others to argue that anything not listed, is not an individual freedom. The very idea that it was impossible to list all of the things that people would like to be free to do made the effort problematic.

The Factors Leading to the Passage of the First Ten Amendments to the Constitution.

The Bill of Rights

The United States Bill of Rights is composed of ten amendments introduced into Congress by James Madison and ratified by the states. Several additional amendments were introduced, so these were the ones that made the cut. The subject of the Bill of Rights is Congress and what it cannot do, not the people and what they can do. This is called by some a negative liberty, since liberty is established by negating the power of government to control people in a given area. This is opposed to a positive liberty which refers to positive efforts to assist individuals in performing certain functions, such as participating in a democratic society which requires a basic level of education. This conception of liberty involves a proactive use of governmental powers to assist people -- think of compulsory, tuition free education for example. It is more properly considered to be a "right" since it involves the idea that people are entitled to certain fundamental things. For these fundamental things (whatever they might prove to be) to be "liberties," such as saying that people had a right to be educated as opposed to having a process in place that made it accessible to everyone, then only those that could afford to enjoy those rights could do so.

Open one of the copies of the Bill of Rights below and read through it. Notice how the document is primarily oriented towards limiting government in certain areas, not actively enabling the individual to do certain things. Its about protecting people from the government (initially only the national government as we will see below).

- National Archives: Bill of Rights.
- Library of Congress: Bill of Rights.
- Bill of Rights Institute.

Though there are ten amendments, they tend to fall into two basic categories based on the type of protection they provide, substantive or procedural. These will be described more fully below, but a substantive protection concerns the "what" of government (what laws is can pass) and the procedural protections regard the "how" of government (how in fact government can arrest, prosecute, try and imprison people).

The Substantive Liberties.

A substantive liberty refers to the subject matter of governmental activity, that is, what government may choose to pass a law about. If we want people to be free to practice their religious beliefs, then we want government to not be able to pass laws about religious practices. This applies to a handful of other items such as speech, the press, the right to peacefully assemble, to petition government for a redress of grievances, to keep and bear arms, and to not have soldiers quartered in their homes.

An interesting thing to note here is that the concept of a substantive liberty is undemocratic. When a democratic government can't pass a law on a specific subject, then that means that the will of the people is limited. A majority of the people may want to pass a law regarding the establishment of religion, but they will be unable to do so. This is what it means for people to be free to do something in a democracy. The will of the majority acting through government, is limited.

The amendments that deal with substantive liberties are:
- The First (Findlaw, Wikipedia)
- Blogposts: First Amendment,

- The Second (Findlaw, Wikipedia)
- Blogposts: Second Amendment.

- The Third (Findlaw, Wikipedia)
- Blogposts: Third Amendment.

- The Ninth (Findlaw, Wikipedia)
- Blogposts: The Ninth Amendment.

- The Tenth Amendment (Findlaw, Wikipedia)
- Blogposts: The Tenth Amendment.

Other useful readings:
- Williams: A Plea for Religious Liberty.
- Freedom of Speech in the United States.

The Procedural Liberties.

Procedural liberties are refer to restrictions on, primarily, the executive power of government, plus the judicial power. It focuses on the "how" of government as opposed to the "what" of government -- which is what substantive liberties were about. Governmental power is the strongest power that exists in society, and the power that we ultimately have the most to fear. The arbitrary use of government al power, which was one of the principal complaints lodged against the Stuart monarchs, provides the greatest challenge to individual liberty. The point behind establishing procedural liberties is to place reasonable restrictions on these powers so the the population can be ensured that the government can control itself. The stronger the process, the greater the control.

The term "due process of law" refers to the nature of this control, and specifically the hurdles established in the Fourth through Eighth Amendments. Think of this process as a guarantee that every step of the way in the criminal justice process, the discretionary powers of the state are limited, again to prevent their arbitrary and capricious use. Searches and seizures have to be backed up by probable cause, trial cannot go forward unless an indictment has been issued by a grand jury, defendant in a trial can face their accusers and bring a lawyer with them, and punishments cannot be cruel and unusual.

The amendments that deal with procedural liberties are:

- The Fourth (Findlaw, Wikipedia)
- Blogposts: Fourth Amendment.

- The Fifth (Findlaw, Wikipedia)
- The Sixth (Findlaw, Wikipedia)
- The Seventh (Findlaw, Wikipedia)
- The Eighth (Findlaw, Wikipedia)

The Fourteenth Amendment and the Incorporation of the Bill of Rights to the States.

Prior to the ratification of the Fourteenth Amendment the U.S. Constitution only applied to the national government. After its ratification, it applied to the states as well, at least theoretically. As a result, the Amendment marks a fundamental shift in the relationship between the national and state governments, with the national government in a greater position to protect the people (its citizens) from the actions of the states. The flip side of this is that the national government was then in a greater position to impose its will, or values, on the states. Opportunities for conflict are obvious. The value system that guides the country as a whole may not be acceptable by a particular state.

Here is the relevant text. Note especially the highlighted portion:

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. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

By establishing national citizenship, the amendment is able to mandate that states abide by the privilege and immunities, and the due process rights, established in the national document. States would no longer be able to ignore substantive or due process rights as established by the national Constitution. Before the 14th Amendment (and for some time after as a practical matter), the states had complete discretion in the degree of individual liberty they allowed their citizens to have. Some states had established churches for example. This only violates the First Amendment if the amendment is applicable to the states, if not, then states are free to force citizens to pay a tax to support the church. The same goes for freedom of speech and detention by the police. Many states had sedition laws on the books which allowed for people who articulated views they disagreed with to be arrested, and police procedures could be arbitrary.

The Fourteenth Amendment essentially applied a base level of freedoms for citizens from the actions of any level of government, again, at least in theory. The Fourteenth Amendment has had a stormy history and was not always upheld by the Supreme Court when called to rule on it. The "Selective Incorporation of the Bill of Rights to the States" refers to the slow process by which the Bill of Rights was actually made applicable to state actions. Case by case, as they have come to the Supreme Court, the court has been able to rule whether a particular use of a state power that seems to violate the U.S. Constitution was in fact unconstitutional. When that decision is made, then the clause in question (such as "free exercise of religion" or "free speech") applies to the actions of state governments, through the 14th Amendment. The process has been slow, incremental, and is still incomplete. Here is a list of the cases that incorporated some of the Bill of Rights to the states:

1897 - Eminent Domain - Chicago Railroad v. Chicago.
1925 - Freedom of Speech - Gitlow v. New York.
1931 - Freedom of the Press - Near v. Minnesota.
1939 - Freedom of Assembly - Hague v. CIO.
1961 - Freedom from Warrant-less Searches and Seizures - Mapp v. Ohio.
1963 - Right to Counsel in and Criminal Trial - Gideon v. Wainwright.
1964 - Right against Self-Incrimination and Forced Confessions - Escobedo v. Illinois.
1966 - Right to Counsel and to Remain Silent - Miranda v. Arizona.
1969 - Rights against Double Jeopardy - Benton v. Maryland.
1973 - Right to Privacy - Griswold v. Connecticut.

This list actually allows us to determine which rights are considered to be more important than others. Assuming that the most important rights would be argued before the courts first, its worth noticing that the first right incorporated to the states was eminent domain, which is the right to property. Property cannot be taken for a public purpose without just compensation. Recall that in Barron v. Baltimore a court case against the city of Baltimore's destruction of the value of a wharf was thrown out since the national judiciary did not have jurisdiction over the matter. This case effectively overturned Barron since the national court system now had the appropriate jurisdiction.

Almost thirty years would pass until the courts began ruling on cases involving the participatory rights in the First Amendment. States could no longer punish individuals for expressing views, or engaging in peaceful activities, that were opposed by those in power. Again almost thirty more years would pass before the courts began to rule on cases involving procedural rights, which generally involve the rights of criminal defendants. These are not always the most popular individuals, so these cases are almost always controversial. Attempts are periodically made to overturn some of these decisions.

The following sites provide more information on this subject:

- Wikipedia: Selective Incorporation.
- Selective Incorporation.
- Exploring Constitutional Conflicts: The Incorporation Debate.

The Role of the Court in Defining Civil Liberties.

Chief Justice Charles Evans Hughes is quoted as having said "we are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution.” The highlighted text is a very pragmatic answer to the question "what are civil liberties exactly?" Since it is up to the justices to interpret the law, including Constitutional law, the Supreme Court is primarily responsible for telling us what words and terms like "establishment," "speech," "probably cause," "due process," and "cruel and unusual" really mean. Obviously this can lead to controversy. The broader the meaning the terms are given, the greater the extent of individual freedom over the interests of the majority to work its will through government.

Take "establishment" for example. A strict or narrow definition of the word might define it as simply referring to a tax supported church, perhaps one with special privileges and maybe even requirements that citizens attend the church. This was the case in Colonial Boston, among other places in early America. The term might simply establish that no on can be forced to provide monetary support for such an organization. But does the clause also restrict the ability of a town to provide free transportation for students attending a religious school -- just as students who attend public schools have? Or place religious displays on public property? Or mandate the public school students recite a prayer approved by a board of trustees? These latter examples -- based on real Supreme Court cases -- are based on broad or loose interpretations of establishment. This is true of the rest of the Bill of Rights, as well as the Constitution itself.

Quite often Supreme Court hearings hinge on determinations of how someone will define a particular word. Do they adopt a loose reading of the document, or a strict reading?

How to Interpret the Constitution? Strictly or Loosely?

- Theories of Constitutional Interpretation.
- Strict Constructionism.
- The Living Constitution.

An Ongoing Controversy: The Right to Privacy.

- Wikipedia: Griswold v. Connecticut.


- John Stuart Mill: On Liberty.
- definition: civil liberties.
- Virginia Declaration of Rights.
- Bill of Rights.
- First Amendment of the United States.
- The
- Wikipedia: The U.S. Bill of Rights.
- History of the Right to Counsel.

Past Written Assignments

1. What is a civil liberty? How in fact does the Bill of Rights incorporate civil liberties into the constitutional system?
2. Though substantive liberties establish areas of individual freedom, Supreme Court rulings sometimes rule that specific expressions of individual freedom are not protected. For example, shouting fire in a crowded theater, libel, fighting words, and anything else that might violate public order . The right to free speech is not without boundaries. I want you to explain what arguments are used to justify limitations on speech. Give and detail an example.
3. The 14th Amendment applied, at least theoretically, the protections established by the Bill of Rights to the states. Describe this process as well as the controversies associated with this process. The relevant readings are available below.
4. Select a Supreme Court cases about civil liberties and summarize the decision. This link takes you to the cases argued in the 2008-2009 session. This link takes you to a site where you can select cases by issue. You may simply select a case regarding Criminal Procedures or the First Amendment. Click on the case you select (you may wish to do some research to determine which case to select), then look to the left. Under "Case Basics" you will see the word opinion. Click on that, then click again on the case you selected. This will take you to the actual Supreme Court decision. This is what I want you to summarize. They tend to be long, so don't get bogged down in detail, just hit the main points.
5. Describe in your own words and critically, the concept of civil liberties, and individual freedom in general. Though we like the concept of freedom, we are also sometimes troubled by how people express their freedom (think about flag burning). Some expressions of individual freedom can put the rest of us in harm's way. How do we determine the maximum degree of individual freedom while still preserving public order and safety? You may want to think about conflicts over laws like the Patriot Act.
6. Every year the Supreme Court hears a variety of cases which involve civil liberties. This year is no exception. On this website you'll find the cases that the ACLU is tracking. Pick one and read through it. Describe the constitutional issue that the court is asked to resolve.
7. Both the U.S. and Texas Constitutions contain bills of rights, but each is distinct. Read through each and describe the similarities and differences.
8. The U.S. Bill of Rights is designed to place additional limits on the powers established in the U.S. Constitution. Read through the document and detail how in fact this is done.
9. Thoroughly compare the U.S. and Texas Bills of Rights. What are the most notable differences you see between the two documents? Any similarities? Try to explain why the differences exist.
10. Describe the controversies associated with the 14th Amendment and the selective incorporation of the Bill of Rights to the States? How might this put the states and the national government in conflict?
11. What are the most topical civil liberties in the news today? Detail them and predict how they would be addressed by the current Supreme Court.
12. Describe in your own words and critically, the concept of civil liberties, and individual freedom in general. Though we like the concept of freedom, we are also sometimes troubled by how people express their freedom (think about flag burning). Some expressions of individual freedom can put the rest of us in harm's way. How do we determine the maximum degree of individual freedom while still preserving public order and safety? You may want to think about conflicts over laws like the Patriot Act.
13. Every year the Supreme Court hears a variety of cases which involve civil liberties. This year is no exception. On this website you'll find the cases that the ACLU is tracking. Pick one and read through it. Describe the constitutional issue that the court is asked to resolve.
14. Both the U.S. and Texas Constitutions contain bills of rights, but each is distinct. Read through each and describe the similarities and differences.