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1.5: Civil Liberties

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    Liberty is arguably the most cherished American value. It features prominently in our Declaration of Independence (“Life, Liberty, and the Pursuit of Happiness”), our Constitution (“the Blessings of Liberty”), our Pledge of Allegiance (“liberty and justice for all”), and our National Anthem (“land of the free”). Both the tiniest copper pennies — LIBERTY has appeared on every U.S. coin minted since 1792 — and the giant copper statue watching over New York Harbor — whose official name is Liberty Enlightening the World — testify to its importance.

    Photograph of the Statue of Liberty in New York Harbor
    The Statue of Liberty guards New York Harbor, where she has stood since 1886.

    Liberty to Americans is more than just a word or symbol. We are fiercely protective of our liberties, also called freedoms or rights. A right is a privilege to which a person is entitled by virtue of who he or she is. Americans often refer to their rights as God-given, inalienable, or natural. Whether or not you believe these rights were actually given by God — “endowed by their Creator,” in the words of the Declaration of Independence — is beside the point, which is that these rights are not simply permissions granted by the government. If they were, the government could in principle revoke them whenever it wished. Rather, the rights we have are inherent in our nature as humans and citizens, which means the government cannot take them away from us without a very good reason.

    Rights are often controversial because they must be limited for society to function. If my rights to do things were unlimited, they would interfere with your rights to not have things done to you, and vice versa. As philosopher Zechariah Chafee put it, “Your right to swing your arms ends just where the other man’s nose begins.” To protect the rights we treasure most, the government must take away or restrict other rights that would interfere with them.

    The question of how much rights should be limited becomes especially contentious when applied to civil liberties. A civil liberty is a protection from government overreach so fundamental that it is considered essential to the functioning of a liberal democracy (liberal meaning “free” in this context). The United States aspires and purports to be a liberal democracy, so it must take care not to unnecessarily curtail the civil liberties of its citizens. But civil liberties, like all rights, are not absolute. Some curtailment will always be necessary, lest the country descend into anarchy.

    The Constitution does not always provide clear answers on the question of which civil liberties Americans have and how far they extend. As a result, America’s history of rights is a long and contested one, beginning before its independence and continuing to the present day. The rights afforded to American citizens have been expanded, contracted, refined, and redefined many times in the United States’ quest to determine how best to live up to its hallowed value of liberty.

    The Bill of Rights

    Civil liberties were at the heart of the debate between Federalists and Anti-Federalists over whether to ratify the Constitution. Both sides recognized the importance of securing the people’s rights. Most delegates to the Constitutional Convention had fought in the American Revolutionary War and understood firsthand both how precious liberty was and how easily it could be lost. The question was not whether liberty needed protecting but rather how to protect it.

    The Anti-Federalists feared the new Constitution would embolden the national government to pass laws that would chip away at the people’s liberties. To stop this from happening, they demanded a clearly specified list of rights, like the ones featured in many of the states’ constitutions. The Constitution’s supporters promised it would not undermine liberty, but the Anti-Federalists wanted those promises in writing as part of the Constitution itself.

    To the Federalists, this approach seemed wrongheaded. Firstly, it was redundant. The Constitution already imposed clear limits on the national government, so adding a list of rights would be unnecessary. (As Alexander Hamilton put it in Federalist No. 84, “Why declare that things shall not be done which there is no power to do?”) Secondly, attempting to protect rights by listing them could backfire and reduce liberty. There were simply too many rights to include them all, and any right left off the list, whether accidentally or on purpose, would inevitably be viewed as less important or perhaps even nonexistent on account of its omission.

    Ultimately, the Anti-Federalists won out. In exchange for Anti-Federalist support at the state ratifying conventions, the Federalists reluctantly pledged that the new Congress would immediately take up the task of crafting a statement of rights to append to the Constitution. James Madison begrudgingly led the effort to whittle down 124 amendments proposed by the states to a list of just 12. Ten of those 12 were ratified by the states in 1791, making them the first ten amendments to the Constitution, known as the Bill of Rights. (See Figure 5.1 below for a summary of the Bill of Rights, the full text of which can be found in Appendix B.)

    Chart summarizing the Bill of Rights
    Figure 5.1: Bill of Rights (summarized)

    Each of the first eight amendments in the Bill of Rights explicitly enshrines one or more civil liberties. The Ninth Amendment addresses the Federalists’ worry by noting that the presence of a Bill of Rights in the Constitution should not be interpreted as a sign that other, unlisted rights do not exist. The Tenth Amendment stipulates that any powers not granted to the national government in the Constitution are reserved for the states or the people, preventing the national government from arbitrarily claiming additional powers.

    Incorporation

    The beginning of the First Amendment (“Congress shall make no law...”) reveals that the Anti-Federalists were specifically concerned about the dangers of the national government. State governments, being less powerful and constrained by their own constitutions, were regarded as less of a threat to liberty. Therefore, the Founders saw no need to subject state governments to the restrictions in the Bill of Rights. The 1833 Supreme Court case Barron v. Baltimore, in which a wharf owner unsuccessfully sued the city for violating his Fifth Amendment right to just compensation for government-seized property, confirmed that the states were not bound by the Bill of Rights.

    The national-only nature of the Bill of Rights changed in 1868 with the ratification of the Fourteenth Amendment, which declared, “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.” This stipulation obligated the states to respect the rights articulated in the Bill of Rights, which, as part of the Constitution, was included among the laws whose equal protection every American was now guaranteed.

    Despite this change, the protections in the Bill of Rights did not apply to the states immediately. Instead, they gradually began to be imposed on the states one right at a time through a process called incorporation. When the Supreme Court hears a case involving a state violating a constitutional right, it can choose to “incorporate” that right against the states. Once a right has been incorporated, states no longer have the authority to deny their citizens that right.

    The Supreme Court began using the incorporation process in the 1897 case Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, when it incorporated the Fifth Amendment right to just compensation (the same right that was at the center of Barron v. Baltimore). Most recently, the 2020 case Ramos v. Louisiana incorporated the Sixth Amendment requirement that jury verdicts in criminal trials must be unanimous. (This requirement is not stated outright in the Sixth Amendment, but the court ruled that it was implied based on what the Founders would have understood “trial by jury” to mean at the time when the amendment was written.) Some rights in the Bill of Rights still have not been incorporated, but the Supreme Court could decide to incorporate them in the future if a relevant case was brought to it.

    Religion

    The first right named in the Bill of Rights is freedom of religion. By the time the First Amendment was ratified in 1791, the United States was already a religiously diverse nation, populated with the descendants of Catholics, Jews, Puritans, and Quakers who had fled religious persecution elsewhere. These groups endured the hardships, risks, and sacrifices of transatlantic travel because the ability to live according to their faith was profoundly important. (For some, it was literally the difference between heaven and hell!) Thus, the right to worship or not worship as one pleases was then — and remains today — one of America’s most precious civil liberties.

    The First Amendment contains two distinct protections of the freedom of religion, as indicated by its opening statement: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” The first protection is the establishment clause, which prevents the government from establishing an official religion (such as those that exist today in countries like Costa Rica, Norway, and Saudi Arabia) or extending special legal privileges to practitioners of certain religions. The second protection is the free exercise clause, which prevents the government from interfering with citizens’ religious practices, either by denying them the right to do things required by their religion (which happens today in countries like China, Iran, and Sudan) or by forcing them to do things forbidden by their religion.

    Together, these two clauses form what Thomas Jefferson referred to as “a wall of separation between Church and State” in America. However, this separation is not absolute. Two centuries of Supreme Court jurisprudence has determined that the government can interact with religious organizations and pass laws limiting religious practices in certain circumstances.

    Since Lemon v. Kurtzman in 1971, the Supreme Court has applied the Lemon test to cases involving the establishment clause. According to the Lemon test, a government action does not violate the establishment clause as long as it has a secular (non-religious) purpose, has a primary effect other than to advance or inhibit religion, and does not create an excessive government entanglement with religion. These criteria allow the government to print the United States’ official motto — IN GOD WE TRUST — on all American currency and to display Judeo-Christian motifs such as the Ten Commandments and Nativity scenes on public property (under certain conditions). These actions, while religious in nature, are symbolic in a way that does not constitute excessively favorable treatment of a particular religion. Governments can also offer grants to religious schools, hospitals, and other institutions without violating the establishment clause, provided they make those same grants available to secular institutions.

    With regard to the free exercise clause, the Supreme Court has ruled that the government can pass laws which limit certain religious practices, so long as those limitations are not the target of or motivation for the laws. This exception prevents Americans from using religion as a “Get Out of Jail Free” card for any illegal action they wish to commit, such as drug use (as the court decided in Employment Division v. Smith in 1990) or ritualistic human sacrifice. Laws against these practices have been passed for reasons of social order rather than religious persecution, and are therefore constitutional.

    Photograph of the Ground Zero Cross on display in New York City
    The Ground Zero Cross, a steel cruciform extracted from the rubble of the World Trade Center and now displayed at the National September 11 Memorial, has been found not to violate the establishment clause due to its historical nature and status as a “symbol of hope.”

    Speech

    The First Amendment also forbids Congress from passing laws “abridging the freedom of speech.” This freedom includes both spoken and written words, as well as nonverbal forms of expression. Free speech is essential to what Supreme Court Justice Oliver Wendell Holmes called the “marketplace of ideas,” the free exchange of information and opinion that makes democracy possible. If citizens were prevented from speaking their mind about politics, it would be impossible to openly debate political issues or criticize government wrongdoing.

    In spite of its importance, freedom of speech, like freedom of religion, is not absolute. Some limitations on speech rights are indispensable for maintaining an orderly society. In its rulings in the many speech-related cases it has heard over the years, the Supreme Court has striven (and often struggled) to define those limitations.

    One relevant factor is the propensity for speech to result in violence. In the 1969 case Brandenburg v. Ohio, which centered on an inflammatory speech given at a Ku Klux Klan rally, the Supreme Court established that the government can restrict incitement, speech which advocates for “imminent lawless action” and is likely to provoke such action. By this standard, the government could punish you for leading an angry mob to vandalize a building, even if you yourself didn’t directly participate in the vandalism. However, a vague call for violence at some point in the future (like the speech at issue in Brandenburg) would not constitute incitement, as there would be no imminent risk of someone heeding such a call.

    Another unprotected category of speech is fighting words. As defined in the 1942 case Chaplinsky v. New Hampshire, fighting words are speech directed at a target for the purpose of provoking a violent response. Unlike incitement, fighting words need not contain explicit instructions to commit violence. For example, if you goaded someone into a barfight through verbal attacks and insults, you could be held legally responsible for starting the ruckus even if the other person threw the first punch (and even if you weren't literally “asking for it”).

    Free speech protections also do not extend to obscenity. Since the 1973 case Miller v. California, the Supreme Court has defined obscenity as being offensive depictions of sexual conduct which lack literary, artistic, political, or scientific value. This standard, however, is easier stated than applied. What is and isn’t considered offensive varies by place and time, and the court has often been asked to judge whether a particular example of speech is offensive enough to qualify as obscenity. (Former Supreme Court Justice Potter Stewart is most famous today for writing in one of his opinions that, while he might not ever be able to define hard-core pornography in precise terms, “I know it when I see it.”)

    While offensiveness is part of the legal definition of obscenity, offensiveness by itself does not exclude speech from First Amendment protection. For example, the Supreme Court has prevented the government from imposing speech restrictions on flag burning (in the 1989 case Texas v. Johnson) and ethnic slurs (in the 2017 case Matal v. Tam). In general, for a speech restriction to be constitutional, it must be based on the context in which the message is expressed, rather than on the content of the message itself. Hate speech, the purpose of which is to demean members of a target group, may be restricted if it falls into another restricted category (such as incitement) but not solely on the basis of the hatred it expresses.

    Freedom of the press, another important First Amendment right, will be covered in depth in Chapter 15. However, as far as the Supreme Court is concerned, the protections afforded to freedom of the press are largely the same as those afforded to freedom of speech. Your own speech may lack the reach and impact of the New York Times, but from a constitutional perspective your expression is just as protected as the Gray Lady’s.

    Arms

    The United States is the only country in the world that has more privately owned guns than it does citizens. America’s appreciation for firearms predates its independence: most of the colonies required all adult white male citizens to own a gun so that they could be recruited into a militia in the event of a crisis. The Founders understood the right to bear arms as an essential bulwark against tyranny: the new Constitution enabled Congress to maintain a standing army and navy, which could easily be used to overpower the states and the people if they lacked the means to defend themselves.

    The right to bear arms does not mean that any U.S. citizen can carry any weapon anywhere. In the 2008 Supreme Court case District of Columbia v. Heller (which declared D.C.’s handgun ban unconstitutional), the court emphasized that the government could constitutionally prohibit convicted felons and mentally ill persons from possessing firearms, and that it could restrict the carrying of firearms in places where they might be particularly dangerous or disruptive (such as schools or government buildings). In 1939’s United States v. Miller, the court ruled that a ban on sawed-off shotguns was constitutional because the firearms in question were not the type that would be employed by a militia, establishing that not all guns were created equal in the eyes of the Second Amendment.

    Since the days of the Founders, the United States military has gone from an underfunded and impermanent entity to the world’s most expensive and most advanced fighting force, and the idea that a state militia could hold its own against the national government’s vastly superior firepower has become increasingly implausible. Nevertheless, in the 2010 case McDonald v. City of Chicago, the Supreme Court incorporated the right to bear arms for self-defense. This was similar to the court’s Heller decision two years prior, which had declared gun ownership for self-defense to be constitutionally protected but had stopped short of incorporating it against the states (because the case had originated in the District of Columbia, rather than one of the 50 states).

    Gun rights are a controversial topic in the United States due to its high rate of gun-related homicides, suicides, and accidental deaths. Some gun control advocates argue that the Second Amendment protects the gun-ownership rights of militia members only, and that the right to bear arms was never meant to extend to private ownership for non-militia purposes. The Supreme Court has ruled otherwise, however, and its decisions have the force of law. States can (and do) impose various restrictions on firearms purchases, but the Second Amendment ensures that those restrictions can only go so far.

    Due Process

    To maintain internal peace — “domestic Tranquility,” in the words of the Preamble to the Constitution — the government must have the ability to enforce its laws and to punish those who violate them. Such power can easily be abused to quash political opposition, as it was prior to the American Revolutionary War in colonial courts beholden to the Crown. To prevent similar abuse, half of the Bill of Rights (Amendments IV through VIII) enshrines certain due process rights which guarantee citizens fair treatment in legal proceedings.

    From the Founders’ perspective, due process rights were so vital that some of them made it into the main body of the Constitution. Article I, Section 9 specifies three such rights. First, except in extreme circumstances, citizens have the right of habeas corpus, preventing them from being imprisoned indefinitely without a hearing and a trial. Second, the government cannot issue bills of attainder, which would allow it to declare certain acts illegal and punishable without a trial. Third, the government cannot pass ex post facto laws retroactively banning actions that were legal at the time they were committed.

    The Fourth Amendment protects citizens against unlawful searches and seizures of their property. Under most circumstances, the police cannot search a person’s home or belongings without that person’s consent, a warrant issued by a judge authorizing a search, or a very good reason (referred to as “probable cause”) for suspecting illegal activity. To discourage illegal searches and seizures, the Supreme Court ruled in 1914’s Weeks v. United States and 1961’s Mapp v. Ohio that illegally obtained evidence is inadmissible in court.

    The Fifth Amendment lists a number of rights possessed by criminal defendants. Among them is the protection against double jeopardy, being tried for the same crime more than once. A defendant who has been found guilty can appeal the verdict, but once he or she has been found not guilty the government doesn’t get a second chance at obtaining a conviction. Also included is the right against self-incrimination, which prevents defendants from being forced to testify against themselves in court. (A defendant who “pleads the Fifth” or “takes the Fifth” invokes this right.) Protection against self-incrimination extends to police interrogation, and the 1966 Supreme Court case Miranda v. Arizona further established that citizens have the right to know about this and other due process rights. This is why police officers read suspects their “Miranda rights,” which famously begin with “You have the right to remain silent....”

    Depictions of arrests in film and television often feature police officers reading suspects their Miranda rights the moment they slap on the handcuffs. While this can make for a dramatic scene, it is not a legal necessity. A Miranda warning is only required prior to the interrogation of a suspect. Still, it is common practice to “Mirandize” suspects upon arrest, to ensure that any potentially incriminating statements they make prior to a formal interrogation can be used against them in court.

    The Sixth and Seventh amendments secure additional due process rights, such as the rights to a speedy and public trial, to a trial by a jury of one’s peers, and to confront witnesses. The 1963 Supreme Court case Gideon v. Wainwright, brought by a homeless drifter who was convicted of robbing a pool hall without a lawyer to defend him in court, resulted in the incorporation of defendants’ right to counsel: defendants who are unable to afford a lawyer are entitled to a public defender, provided and paid for by the government, to represent them in court.

    The Eighth Amendment prohibits excessive bail and fines as well as “cruel and unusual punishment.” In the 1972 case Furman v. Georgia, the Supreme Court based its definition of “cruel and unusual” on the punishment’s severity, degradation of human dignity (as in the case of torture), inconsistent application, societal rejection, and unnecessity. The Furman decision also deemed the death penalty cruel and unusual based on the inconsistency with which it was applied, leading to a nationwide moratorium on executions. States with the death penalty modified their procedures to meet the court’s standards, and in 1976 the court lifted the moratorium in Gregg v. Georgia. Today, the death penalty is legal in 27 states (as depicted in Figure 5.2 below), although three of those states currently have their own moratoria on executions.

    Map showing the number of executions by state from 1976 to 2022 and hte legal status of the death penalty as of 2023, according to the Death Penalty Information Center
    Figure 5.2: Executions by state, 1976–2022, with legal status of death penalty as of 2023 (Source: Death Penalty Information Center)

    The Paradox of Liberal Democracy

    Americans’ beloved civil liberties have been redefined and reinterpreted many times since they were articulated in the Constitution and the Bill of Rights. This is due in part to the Founders’ brevity: phrases like “freedom of speech” and “cruel and unusual punishment” are vague enough to be interpreted numerous ways, and it often falls to the Supreme Court to determine which interpretations are most faithful to the Founders’ intent.

    Technological changes have also cast civil liberties in a new light. The right to bear arms has a decidedly different ring to it in an era of automatic and semiautomatic weapons. The proliferation of the automobile raised new questions about what constitutes an unlawful search when vehicles are involved. The invention of the Internet had major implications for unlawful searches, free speech, and self-incrimination. (Can the police demand that you give them your laptop password if they have a warrant to search it? The Supreme Court hasn’t decided...yet.) In these and other instances, we have no choice but to go out on a limb to answer questions the Founders never anticipated.

    Civil liberties are inextricably bound up with the idea of democracy: the diminishment of the former imperils the latter. Yet, paradoxically, protecting civil liberties is inherently undemocratic. Democracies are predicated on majority rule, which dictates that the course of action favored by most citizens is the one government should undertake — but the Bill of Rights is a long list of things the government cannot do, even if a majority of the people favors them.

    The antimajoritarian nature of civil liberties illuminates whom they are protecting from whom. A civil liberty protects the people, but which people? People with popular opinions hardly need legal protection for their expression, but people with abhorrent, fringe, offensive views rely on the First Amendment to protect their right to say things most of us find reprehensible. Those of us lucky enough never to be charged with a crime will never benefit from the Sixth Amendment right to counsel, but alleged murderers and rapists (who are often convicted in the “court of public opinion” long before their trials, and whom the public would likely deny the right to legal representation if it could) definitely will. The Sixth Amendment right to counsel will never benefit those of us lucky enough to never be charged with a crime, but alleged murderers and rapists (who are often convicted in the “court of public opinion” long before their trials, and whom the public would likely deny the right to legal representation if it could) definitely will. If civil liberties protect these people from their government, and if democratic government is of, by, and for the people, then civil liberties protect the people from themselves — specifically, they protect the minority and the marginal from the majority and the mainstream.

    Civil liberties are a vital “safety feature” of the American political machine. As with many machines, users are often tempted to disable the safety features for one reason or another. When we hear someone spew hateful rhetoric or watch someone accused of a heinous crime get off on a technicality, we sometimes fantasize about modifying one civil liberty or another, just this once. The paradox of liberal democracy reminds us that such modifications can backfire on us the moment we find ourselves in the minority and facing the majority’s wrath.


    This page titled 1.5: Civil Liberties is shared under a CC BY-NC 4.0 license and was authored, remixed, and/or curated by Benjamin R. Kantack (Tekakwitha Press) via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.

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