The U.S. Constitution—in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to “persons,” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms when they are in the United States or its territories as adult citizens do. So, whether you are a Japanese tourist visiting Disney World or someone who has stayed beyond the limit of days allowed on your visa, you do not sacrifice your liberties. In everyday conversation, we tend to treat freedoms, liberties, and rights as interchangeable—similar to how separation of powers and checks and balances are often used synonymously, when, in fact, these are distinct concepts.

DEFINING CIVIL LIBERTIES

To be more precise in their language, political scientists and legal experts make a distinction between civil liberties and civil rights, even though the Constitution has been interpreted to protect both. We typically envision civil liberties as limitations on government power, intended to protect freedoms upon which governments may not legally intrude. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion. This means that neither states nor the national government can forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. That said, the way you practice your religion, like any other practice, may be regulated if it impinges on the rights of others. To return to the previous example, religious communities may believe their faith will protect them and loved ones from disease, but they may not have the right to both not vaccinate their children and have those children publicly educated, where they would pose a risk to others.

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. Because of the Constitution’s civil rights guarantee, it is unlawful for any publicly-funded entity, such as a school or state university, or even a landlord or potential landlord to treat people differently based on their race, ethnicity, age, sex, or national origin. In the 1960s and 1970s, many states had separate schools where only students of a certain race or gender were able to study. However, the courts decided that these policies violated the civil rights of students who could not be admitted because of those rules.

The idea that Americans—indeed, people in general—have fundamental rights and liberties was at the core of the arguments in favor of their independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of English philosopher John Locke to express the colonists’ belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to their subjects. It was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities (Figure 4.2).

The state conventions that ratified the Constitution obtained promises that the new Congress would consider adding a Bill of Rights. James Madison—the key figure in the Constitutional Convention and an exponent of the Constitution’s logic in the Federalist papers—was elected to the first House of Representatives. Keeping a campaign promise, he surveyed suggestions from state-ratifying conventions and zeroed in on those most often recommended. He wrote the amendments not just as goals to pursue but as commands telling the national government what it must do or what it cannot do.

The first eight amendments that were adopted address particular rights. The Ninth Amendment addressed the concern that listing some rights might undercut unspoken natural rights that preceded government. It states that the Bill of Rights does not “deny or disparage others retained by the people.” This allows for unnamed rights, such as the right to travel between states, to be recognized. We discussed the Tenth Amendment in Chapter 3 “Federalism”, as it has more to do with states’ rights than individual rights.

Rights Guaranteed in the Constitution

Even before the addition of the Bill of Rights, the Constitution did not ignore civil liberties entirely. It bars Congress and the states from enacting bills of attainder (laws punishing a named person without trial) or ex post facto laws (laws retrospectively making actions illegal). It also states that Congress cannot restrict one’s right to request a writ of habeas corpus giving the reasons for one’s arrest. Particularly in times of war, or even in response to threats against national security, the government has held suspected enemy agents without access to civilian courts, often without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial. For example, during World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin (Figure 4.3).⁵ More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought to avoid trials in civilian courts, and surveilled U.S. citizens to detect threats. Hence, there have been times in our history when national security issues trumped individual liberties.

EXTENDING THE BILL OF RIGHTS TO THE STATES

The festering issue of the rights of enslaved persons and the convulsions of the Civil War and its aftermath forced a reexamination of the prevailing thinking about the application of the Bill of Rights to the states. 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 formerly enslaved people, including the right to hold office, own land, or vote, relegating them to second-class citizenship. Angered by these actions, members of the Radical Republican faction in Congress demanded that the Black codes be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted these discriminatory laws. Their long-term solution was to propose and enforce two amendments to the Constitution to guarantee the rights of freed men and women. These 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 (Figure 4.4), though still not for women or Native Americans.

With the ratification of the Fourteenth Amendment in 1868, the scope and limits of civil liberties became clearer. 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.

The second provision of the Fourteenth Amendment pertaining to the application of the Bill of Rights to the states is the due process clause, which famously reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Like the Fifth Amendment, this clause refers to “due process,” a term that is interpreted to require both access to procedural justice (such as the right to a trial) as well as the more substantive implication that people be treated fairly and impartially by government officials. Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that due process also implies that there are certain fundamental liberties that cannot be denied by the states.

Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws (and the Tenth Amendment itself) do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into the practices of the states: the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly. 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. Selective incorporation is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. Another area in which the Supreme Court gradually moved to incorporate the Bill of Rights regards censorship and the Fourteenth Amendment.

 

The Supreme Court’s Extension of the Bill of Rights to the States

Date	Amendment	Right	Case
1897	Fifth	Just compensation for eminent domain	Chicago, Burlington & Quincy Railroad v. City of Chicago
1925	First	Freedom of speech	Gitlow v. New York
1931	First	Freedom of the press	Near v. Minnesota
1932	Fifth	Right to counsel	Powell v. Alabama (capital cases)
1937	First	Freedom of assembly	De Jonge v. Oregon
1940	First	Free exercise of religion	Cantwell v. Connecticut
1947	First	Nonestablishment of religion	Everson v. Board of Education
1948	Sixth	Right to public trial	In Re Oliver
1949	Fourth	No unreasonable searches and seizures	Wolf v. Colorado
1958	First	Freedom of association	NAACP v. Alabama
1961	Fourth	Exclusionary rule excluding evidence obtained in violation of the amendment	Mapp v. Ohio
1962	Eighth	No cruel and unusual punishment	Robinson v. California
1963	First	Right to petition government	NAACP v. Button
1963	Fifth	Right to counsel (felony cases)	Gideon v. Wainwright
1964	Fifth	Immunity from self-incrimination	Mallory v. Hogan
1965	Sixth	Right to confront witnesses	Pointer v. Texas
1965	Fifth, Ninth, and others	Right to privacy	Griswold v. Connecticut
1966	Sixth	Right to an impartial jury	Parker v. Gladden
1967	Sixth	Right to a speedy trial	Klopfer v. N. Carolina
1969	Fifth	Immunity from double jeopardy	Benton v. Maryland
1972	Sixth	Right to counsel (all crimes involving jail terms)	Argersinger v. Hamlin
2010	Second	Right to keep and bear arms	McDonald v. Chicago
Rights not extended to the states
Third	No quartering of soldiers in private dwellings
Fifth	Right to grand jury indictment
Seventh	Right to jury trial in civil cases under common law
Eighth	No excessive bail
Eighth	No excessive fines

References

Curtis, M. K., Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000).

Davis, R., Decisions and Images: The Supreme Court and the News Media (Englewood Cliffs, NJ: Prentice-Hall, 1994).

Goldwin, R. A., From Parchment to Power (Washington, DC: American Enterprise Institute, 1997).

Lewis, A., Gideon’s Trumpet (New York: Vintage Books, 1964).

Schauer, F., “The Political Incidence of the Free Speech Principle,” University of Colorado Law Review 64 (1993): 935–57.

Smith, J. M., Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, NY: Cornell University Press, 1956). For how the reaction to the Sedition Act produced a broader understanding of freedom of the press than the Bill of Rights intended, see Leonard W. Levy, Emergence of a Free Press (New York: Oxford University Press, 1985).