Introduction

Black Lives Matter demonstrations across the nation provided an example of the freedom of assembly protected by the Bill of Rights. This right may now be in jeopardy as bills in several state legislatures threaten peaceful gatherings and even shield citizens who attack such protesters. Fights like this—in the streets, courts, legislatures, and public opinion—are hardly unique in U.S. history. In fact, they are the main driver of political change.

The framers of the Constitution wanted a government that would not repeat the abuses of individual liberties and rights that caused them to declare independence from Britain. However, laws and other "parchment barriers" (or written documents) alone have not protected freedoms over the years; instead, citizens have learned the truth of the old saying (often attributed to Thomas Jefferson but actually said by Irish politician John Philpot Curran), "Eternal vigilance is the price of liberty." The actions of ordinary citizens, lawyers, and politicians have been at the core of a vigilant effort to protect constitutional liberties.

But what are those freedoms? And how should we balance them against the interests of society and other individuals? These are the key questions we will tackle in this chapter.

Defining Civil Liberties

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.

The Declaration of Independence and Natural Rights

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.

Civil Liberties and the Constitution

The Constitution as drafted in 1787 did not include a Bill of Rights, although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution believed they faced much more pressing concerns than the protection of civil rights and liberties—most notably keeping the fragile union together in the light of internal unrest and external threats.

Moreover, the framers thought that they had adequately covered rights issues in the main body of the document. Indeed, the Federalists did include in the Constitution some protections against legislative acts that might restrict the liberties of citizens, based on the history of real and perceived abuses by both British kings and parliaments as well as royal governors.

In Article I, Section 9, the Constitution limits the power of Congress in three ways:

The Federalist-Anti-Federalist Debate

The Federalists reasoned that the limited set of named or enumerated powers of Congress, along with the limitations in Article I, Section 9, would suffice, and that no separate bill of rights was needed. Writing as Publius in Federalist No. 84, Alexander Hamilton argued that the Constitution was "merely intended to regulate the general political interests of the nation" rather than contend with "the regulation of every species of personal and private concerns."

Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights not included in such a list were not protected.

Anti-Federalists argued that the Federalists' position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the so-called elastic clause in Article I, Section 8 would allow Congress to legislate on matters well beyond those foreseen by the Constitution's authors. Thus, they held that a bill of rights was necessary.

The Bill of Rights

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights from the Constitution nearly derailed the ratification process. While some states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution's lack of specified rights became a serious point of contention.

To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, the Federalists agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.

Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources. Ten of the amendments were successfully ratified and became known as the Bill of Rights.

Extending the Bill of Rights to the States

In the decades following the Constitution's ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore. In this case, which dealt with property rights under the Fifth Amendment, the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government, not state or local governments.

The festering issue of the rights of enslaved persons and the convulsions of the Civil War and its aftermath forced a reexamination of this thinking. 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.

The First Amendment

The First Amendment is perhaps the most famous provision of the Bill of Rights. It is arguably also the most extensive, because it guarantees both religious freedoms and the right to express your views in public. Specifically, the First Amendment says:

Given the broad scope of this amendment, it is helpful to break it into its two major parts. The first portion deals with religious freedom, and the second deals with freedom of expression.

The Establishment Clause

The first of the two religious freedoms is known as the establishment clause. Congress is prohibited from creating or promoting a state-sponsored religion. When the United States was founded, most countries around the world had an established church or religion—an officially sponsored set of religious beliefs and values.

In Europe, bitter wars were fought between and within states, often because the established church of one territory was in conflict with that of another. Many settlers in the United States found themselves on this continent as refugees from such wars; others came to find a place where they could follow their own religious beliefs and practices without interference.

The use of education as an example is not an accident; in fact, many of the court's cases dealing with the establishment clause have involved education, particularly public education, because school-age children are considered a special and vulnerable population. Perhaps no subject affected by the First Amendment has been more controversial than the issue of prayer in public schools.

The Free Exercise Clause

The second provision, known as the free exercise clause, limits the government's ability to control or restrict religious practices. While the establishment clause means the government may not promote religion, the free exercise clause means the government may not restrict your ability to practice your religion.

Freedom of Speech

Freedom of speech and of the press are two of the key liberties at the heart of the First Amendment. Protection of free expression is essential to democratic self-government because democracy depends on an informed and engaged citizenry. Without the freedom to express and communicate ideas, a democracy cannot function effectively.

The right to freedom of expression is not absolute; several key restrictions limit our ability to speak or publish opinions under certain circumstances:

Freedom of the Press

Freedom of the press is related to freedom of speech in that it concerns the right of a medium of communication (written, broadcast, or spoken) to communicate ideas without undue government interference. Like freedom of speech, it is not an absolute right.

Freedom of Assembly and Petition

The final two clauses of the First Amendment protect the right of individuals to gather peacefully and to request that government take action or refrain from taking action.

There have been controversial situations in which government agencies have established free-speech zones for protesters during political conventions, presidential visits, and international meetings in areas that are arguably selected to minimize their public audience or to ensure that the subjects of the protests do not have to encounter the protesters.

Categories of Rights

We can broadly divide the provisions of the Bill of Rights into three categories:

• First through Fourth Amendments: Protect basic individual freedoms
• Fourth through Eighth Amendments: Protect people suspected or accused of criminal activity or facing civil litigation
• Ninth and Tenth Amendments: Indicate that the Bill of Rights is not an exhaustive list and guarantee a role for state governments

The Second Amendment

There has been increased conflict over the Second Amendment in recent years due to school shootings and gun violence. As a result, gun rights have become a highly charged political issue. The text of the Second Amendment is among the shortest of those included in the Constitution:

But the relative simplicity of its text has not kept it from controversy. The key debate: Is this amendment merely a protection of the right of the states to organize and arm a "well regulated militia" for civil defense, or is it a protection of a "right of the people" as a whole to individually bear arms?

The Third Amendment

The Third Amendment prohibits the government from commandeering people's homes to house soldiers, particularly in peacetime:

This amendment reflected the colonists' grievances against British troops being quartered in private homes. While rarely litigated today, the Third Amendment forms part of a broader conception of privacy in the home that is also protected by the Second and Fourth Amendments.

The Fourth Amendment

The Fourth Amendment prevents the government from searching one's person or property or taking evidence without a warrant issued by a judge:

Introduction

In addition to protecting the personal freedoms of individuals, the Bill of Rights protects those suspected or accused of crimes from various forms of unfair or unjust treatment. The prominence of these protections in the Bill of Rights may seem surprising. Given the colonists' experience of what they believed to be unjust rule by British authorities, however, and the use of the legal system to punish rebels and their sympathizers for political offenses, the impetus to ensure fair, just, and impartial treatment to everyone accused of a crime—no matter how unpopular—is perhaps more understandable.

The Fifth Amendment

Many of the provisions dealing with the rights of the accused are included in the Fifth Amendment; accordingly, it is one of the longest in the Bill of Rights:

The Sixth Amendment

Once someone has been charged with a crime and indicted, the next stage in a criminal case is typically the trial itself, unless a plea bargain is reached. The Sixth Amendment contains the provisions that govern criminal trials:

The Seventh Amendment

The Seventh Amendment ensures the right to a jury trial in most civil cases where the amount in controversy exceeds $20 (a substantial sum in 1791). However, this amendment has not been incorporated to apply to the states; it applies only in federal courts.

The Eighth Amendment

The Eighth Amendment protects those accused and convicted of crimes from excessive punishment:

Introduction

The first eight amendments are largely silent on the status of traditional common law, which was the legal basis for many of the natural rights claimed by the framers in the Declaration of Independence. These amendments largely reflect the worldview of the time in which they were written. New technology, societal norms, and economic realities furnish challenges that fail to fit neatly into the framework established in the late eighteenth century.

The Ninth Amendment

The framers were aware they might endanger some rights if they listed a few in the Constitution and omitted others. The Ninth Amendment ensures that those interpreting the Constitution would recognize that the listing of freedoms and rights in the Bill of Rights was not exhaustive.

These rights "retained by the people" include the common-law and natural rights inherited from the laws, traditions, and past court decisions of England. To this day, we regularly exercise and take for granted rights that aren't written down in the federal constitution, like the right to marry, the right to seek opportunities for employment and education, and the right to have children and raise a family.

The Tenth Amendment

This amendment clarifies the federal system, reserving powers to states and the people that aren't given to the federal government. States often provide broader rights protections than federal minimums. For example, some state constitutions explicitly list the right to privacy, the right to a free public education, or even the right to hunt.

The Right to Privacy

Although several state constitutions do list the right to privacy as a protected right, the explicit recognition by the Supreme Court of a right to privacy in the U.S. Constitution emerged only in the middle of the twentieth century.

Sexual Privacy and Reproductive Rights

The Supreme Court's application of the right to privacy doctrine to abortion rights proved far more problematic, legally and politically.

Privacy in the Digital Age

Another example of heightened concerns about privacy in the modern era is the reality that society is under pervasive surveillance. Technology has made it much easier to track and monitor people than ever before.

Key Terms Review

Landmark Supreme Court Cases

Critical Thinking Questions