GOVT 2305

Civil Liberties and the Bill of Rights

The final constitutional principle we will discuss

is individual liberty.

The fancy term we will use is civil liberty.

Note that other principles are contained in the constitution, but

these (most notably equality) were added to the document after the original document was ratified.

For past blog posts on relevant material for this section, click on

these:

Bill of Rightscivil liberties

establishment clausefirst amendment

free exerciseprocedural liberty

Two quick definitions of the term “civil liberty.”

1 - The protections of individuals from the arbitrary powers of government.

2 - “the freedom of a citizen to exercise customary rights, as of speech or

assembly, without unwarranted or arbitrary interference by the government.”

So civil liberties are guarantees against arbitrary power and in favor of the ability to engage in certain activities central to self

government.

You can find more expansive definitions, thoughts and comments here:

About.comACLU: This Week in Civil Liberties

Cato Institute: Civil LibertiesDavid Hume, Of Civil Liberty

Wikipedia

Note: A civil liberty is not the same as a civil right.

Freedom of speech is a civil liberty. The right to equal protection is a civil right.

We will cover this more fully in the next section.

Civil liberties are established by limiting the government.

Specific limits are placed on its powers. The question is how is this

best done?

As we will see, there are two ways to do so.

The first is to design the system so that its various parts check each other. The second is to place explicit limits on

the powers of government in a document called a Bill of Rights.

The document as ratified contained the former, but not the

latter.

The Federalists thought the republican design, in addition to

the checks and balances was sufficient to limit governing power, but the Anti-Federalists needed a

further guarantee.

This guarantee would become the first Ten Amendments, also known

as the Bill of Rights.

Have a quick look through it by clicking here: U.S. Bill of Rights.

Its short, it wont take long.

The Bill of Rights places two general types of limitations on the

powers of the national government:

SubstantiveProcedural

As a consequence we can speak of procedural liberty (notably due

process) and substantive liberty.

A substantive limit refers to what government can pass laws about.

(religion, speech, press etc…)

Example: You are free to say what you wish because government is limited from passing laws which

restrict speech.

(we will analyze exceptions to this in due course)

A procedural limit refers to how the executive and judicial powers

can be used.

The Due Process of Law

Example: How, and under what conditions, can someone be

searched? And if one is accused of a crime, what justifies a trial? And one goes to trial, what rights does

a defendant have in a court of law?

Basic Fact:

The U.S. Bill of Rights has ten sections – these are the first ten

amendments to the Constitution. There is no separate section titled “the bill of rights.” the term simply refers to the first ten amendments.

Some useful links regarding the Bill of Rights.

- Its History and Significance- Wikipedia

- James Madison and the Bill of Rights

It is relatively short and vague. As is the rest of the Constitution. It is

commonly reinterpreted, often controversially so.

Example: A recent Supreme Court case dealt with the question

whether gaming was constitutionally protected speech.

Bills of Rights were commonly attached to state constitutions. It

was argued that they were necessary because the states had –

as we know – powers that were “many and undefined.” States

could potentially pass laws that treated people arbitrarily and

limited individual freedom.

As we will see soon, many states – and colonies before them – did

restrict religious freedom. Many had state sponsored religions.

Hamilton and Madison both argued that a national bill of rights

was unnecessary because the national government’s powers

were “few and defined.”

Think about it – Congress has no delegated power to pass laws on

religion and speech, etc ….

The Anti-Federalists were unconvinced and demanded that a

Bill of Rights be added to the document to ensure that specific limits were placed on the national

government.

Five states, including Massachusetts, ratified the

Constitution on the condition that such amendments be added

immediately.

James Madison agreed to introduce and push it through the House when he became a member

of it.

He thought it was harmless.

The addition of the Bill of Rights is therefore a product of a

compromise between the Federalists and the Anti-

Federalists.

It was the subject of Federalist #84 (wikipedia). Its argument was

rebutted in Anti Federalist #84.

Some argued that adding a Bill of Rights was dangerous.

Noah Webster for example.

It is impossible to spell out all the rights of individuals. To only list a few would imply that others did

not exist.

Listing six freedoms in the First Amendment might lead others to

suggest that these are the only ones that exist.

What about rights not mentioned in the Constitution?

Privacy?Travel?

Contract?Property?

Voting?

For general information: Things that are not in the Constitution.

If the right is not explicitly written in the Constitution, it may be

argued that the power does not exist.

Here’s an example of this reasoning. It involves the rights of

gays and lesbians and whether they sexual orientation is covered

by the equal protection clause.

Clarence Thomas’ Dissenting Opinion in Lawrence v. Texas.

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the

Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with

another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather,

is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the

Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both

in its spatial and more transcendent dimensions,” ante, at 1.

There would be no way to make this argument if there was no First

Amendment because the rights cannot be limited to those listed.

Was this what Hamilton was concerned about here?

“. . . bills of rights, in the sense and in the extent in which they are contended for, are not only

unnecessary in the proposed constitution, but would even be dangerous. They would contain various

exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to

do?”

Nevertheless, a bill of rights was proposed and debated during the

Constitutional Convention

(August 20).

It was not accepted.

But it is also argued that a statement of the specific liberties held by the people is essential to the formation of a free society.

It clearly establishes the importance of these rights.

Every time we read the First Amendment, for example, we are

reminded of the importance of religious liberty as well as that of

speech, press, assembly and petition.

They attain a unique status among all liberties.

And once the 14th Amendment was added to the Constitution these

rights guaranteed by the national government has to be recognized

by the state governments.

Many states didn’t.

Some History

The rights listed in the Bill of Rights evolved over time.

Some of this history we have discussed, so this concept should

be familiar by now.

We have noted four specific predecessors, in British history, to

the Bill of Rights.

The Charter of LibertiesMagna Carta

The Petition of RightThe English Bill of Rights

The Charter of Liberties (1100) was issued by Henry I in order to convince the nobility and the

church that he would abide by the law.

These were a bit random, and were soon forgotten. But they

would become the model for the Magna Carta which established specific procedural limits on the

power of the monarchy.

Magna Carta (1215)

As we know, Magna Carta was forced upon John by the nobility. It was intended to minimize arbitrary rule and establish certain defined

rights on the part of freemen.

No freeman could be punished unless it was in accordance with

the law of the land.

The term freeman is worth digging into further. These rights did not

apply to everyone.

- Wikipedia: Freeman

Click here for a good summary of the specific rights and freedoms

secured in the Magna Carta.

A handful of its provisions establish what we now know as the rule of law – or procedural liberty as we

are calling it now.

38. No bailiff for the future shall, upon his own unsupported

complaint, put anyone to his "law", without credible witnesses brought for this purposes.

39. No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon

him, except by the lawful judgment of his peers or by the law

of the land.

40. To no one will we sell, to no one will we refuse or delay, right

or justice.

Respectively these establish the idea that convictions must be

based on eyewitness testimony, convictions must be rendered by a jury, and that justice is available to

all.

Much of the 6th Amendment – which establishes the procedural

liberties of criminal defendants - is based on this.

The Petition of Right (1628)

The Petition of Right was written to remind Charles I of the “ancient

rights and liberties” agreed to in Magna Carta.

As discussed earlier, Magna Carta had been forgotten over time.

The petition was written by Edward Coke who modified Magna Carta to apply to all subject of the

crown, not just the nobility.

All subjects of the crown should have liberties from the arbitrary

actions of the government.

Charles was unconvinced and suspended Parliament as a result.

But he would be executed soon enough, and the Scottish Stuarts

would be removed in the Glorious Revolution, which led – as we

know to:

The English Bill of Rights (1689)

This document, backed by a powerful Parliament, would not only ensure that the procedural

limitations placed on the power of the monarch would be secure, but it also added substantive liberties

as well.

A Small Sampling:

The English Bill of Rights• . . . it is the right of the subjects to petition the king,

and all commitments and prosecutions for such petitioning are illegal;

• . . . the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

• . . . the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

• . . . excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

Aspects of the First, Second, and Eighth Amendment can be found here.

But notice that religious liberty is not recognized. Protestants are privileged over Catholics (this is something to think about prior to our discussion of equal protection

and civil rights). Early colonies had religious requirements.

Recall that part of what motivated the colonists in the 1760s through the revolution was that they were not recognized as Englishmen and were not granted the rights given

to Englishmen.

The Declaration of Independence would establish that the liberties

of Englishmen should apply to the white, property owning, male

inhabitants of the colonies.

The Declaration of Independence (1776)

Note: what happened here was similar to what would occur later

in American history.

We cover the expansion of liberties to other groups in society when we

discuss civil rights.

The Declaration is based on John Locke’s argument in the

Second Treatise on Government.

We covered this material previously so it should be familiar

to you.

It establishes that certain rights are unalienable in the individual.

But again – they didn’t apply to everyone. The notion of individual

liberty existed, but was very limited.

Here are two other useful documents. They help us

understand how the subject of individual liberty was handled

elsewhere.

The Virginia Declaration of Rights

The Declaration of the Rights of Man and of the Citizen

The Virginia Declaration of Rights was also written by Jefferson and

was intended to serve as Virginia’s Bill of Rights.

The Declaration of the Rights of Man was France’s Bill or Rights, written during their revolution.

Each document is far more forceful than the U.S. Bill of Rights in how

they state these rights.

Certain things are inherent in the individual and must be guaranteed proactively. The US Bill of Rights is

more passive.

The Bill of Rights does not make similar statements. It is really less

about the rights of individuals than it is about limiting the power of

government.

The document assumes that people have certain liberties, and establishes them by negating the power of government to interfere

with those liberties.

Two useful terms:

Negative LibertyPositive Liberty

Negative Liberty

A liberty established by the negation of the power that can

suppress it.

The First Amendment, for example, starts with the phrase

“Congress shall make no law.” The subject of the document is not the people and what they can do, but government and what it cannot

do.

This is distinct from a positive liberty which places an obligation

on a governing authority to actively provide for the right.

This is a good definition of a civil right.

For example, many people consider education to be a right,

which means that we are obligated to provide it.

But there is no language mandating it on the national level.

Five quick points about the Bill of Rights.

1 - It is Undemocratic.

It establishes that, for example, certain laws cannot be passed, even if the majority supports it. This minimizes the ability of the

majority to impose its will on the minority.

“Congress can make no law...”

Even if the majority wants it to?

This is meant to save the minority from the majority, but it does so by

limiting the majority.

This explains why the implementation of these

limitations can be very unpopular.

2 - Civil Liberties are not Absolute.

They can be limited if doing so secures the greater interest of

society.

Example:

Freedom of Speech does not protect you from being punished

for falsely shouting fire in a crowded theater.

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question

in every case is whether the words used are used in such circumstances and are of such a nature

as to create a clear and present danger that they will bring about the substantive evils that

Congress has a right to prevent.

– Oliver Wendell Holmes, Schenck v. U.S.

A related concept:

Ordered Liberty

People are free to act within the confines of what it takes to have

an orderly society.

Another example:

“The Constitution is not a suicide pact” - Eric Posner

Can restrictions on searches and seizures be too restrictive on the ability of government to enforce

the law?

Controversy: What factors justifiably limit constitutional

liberties?

How do we define the greater interest of society?

This is an ongoing source of controversy, but it is generally held

that liberties have their limits. Establishing those limits is an

ongoing source of controversy.

3 – Civil Liberties can come into conflict

For example:

The Freedom of the Press can conflict with The Right to a Fair

Trial.

The Right Against Self Incrimination vs. the Right to

Obtain Witnesses in Your Favor

4 – The specific recognition of rights is up to the Supreme Court.

This involves controversies over how the Constitution is to be interpreted and what role the

court should have in overturning legislation.

Examples of rights established by Supreme Court Decisions:

The Right to PrivacyOne Person One Vote

Miranda WarningsRights of Corporations

The Right to Privacy

The Supreme Court recognized in Griswold v. Connecticut within the

broad language of the Constitution, a right to privacy.

One Person One Vote

in Baker v Carr the Supreme Court ruled against the existence of uneven districts because they

violated an implicit guarantee that votes be equal.

Miranda Warnings

In Miranda v Arizona the court argued that the Fifth Amendment right against self incrimination had

to be made clear to criminal suspects.

Rights of Corporations

In Citizens United v. FEC the Supreme Court argued that corporations have the same

speech rights as citizens.

Controversy: How expansively should rights be inferred from the

document?

How should the Constitution be interpreted? As discussed

previously, this is highly controversial.

This is material we covered before. Constitutional language can be interpreted in different ways:

- Strictly- Loosely

Those who argue for a strict interpretation tend to battle over

whether meaning must be determined by trying to figure out the intent of those who wrote the

document, or by sticking to the narrow reading of the text.

Strict Interpretation

Original IntentTextualism

Those who argue for loose interpretations often argue that

the loose language in the Constitution is intended to allow for flexibility in how it is applied.

This is often referred to as the Living Constitution. The document must be adapted to the changing

circumstances of society, including the changing morals of the

community.

One with a loose interpretation of the Constitution is likely to see

rights embedded within the document that are not

acknowledged by those with a strict interpretation

Example: Privacy / Abortion

Key current controversy: Do “evolving standards of decency”

mean that the juvenile death penalty is cruel and unusual?

Competitive elections often include statements regarding a

candidate’s viewpoint concerning how the Constitution should be

interpreted.

5 – Originally the Bill of Rights applied only to the national

government, but the 14th Amendment made it applicable to

the states.

“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 …”

This made the restriction placed on the national government applicable to state and local governments as well.

States could not deny liberties to American citizens. Their citizens were also American citizens, so the conflict

was inevitable.

Controversy followed since states were no longer able to deny certain

liberties to their citizens.

They were freer to speak, organize and use the press. They also had freedoms

against the arbitrary use of law enforcement.

Supreme Court cases the apply national civil liberty restrictions to

state governments contain language stating that the national limit applies to the states through

the 14th Amendment.

The doctrine of “equal protection of the laws” was also established in the 14th Amendment, but we cover

that when we discuss civil rights.

Next Topic

The Content of the Bill of Rights

Responding to demands by the states ratifying conventions, James

Madison introduced several constitutional amendments to the House of Representatives when it

first met.

Twenty were introduced, twelve would be sent to the states, ten

would be ratified.

One of the rejected amendments was a right to conscience.

“No State shall violate the equal rights of conscience, or the

freedom of the press, or the trial by jury in criminal cases.”

It was rejected by the Senate.

To repeat a point made above:

There are two types of liberties established in the Bill of Rights,

substantive and procedural.

We will review each.

Substantive Liberties

The “what” of government

These are contained in Amendments 1, 2, 3, 9, and 10

First Amendment: Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

It establishes six specific liberties:

EstablishmentFree Exercise

SpeechPress

Peaceful AssemblyPetition

More attention is paid to this amendment than to any other. We

will dig into these controversies soon.

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be infringed.

Until several years ago, the Supreme Court had never clarified the meaning

of the opening phrase.

Is the right to bear arms absolute or conditional upon the existence of a militia (which a standing army has

made unnecessary)?

In the case DC v. Heller, the court ruled 5-4, that it was an absolute

right.

McDonald v. Chicago made this applicable – through the 14th Amendment – to the states.

Third Amendment: No Soldier shall, in time of peace be

quartered in any house, without the consent of the Owner, nor in

time of war, but in a manner to be prescribed by law.

There is very little jurisprudence associated with this amendment.

Ninth Amendment: The enumeration in the Constitution,

of certain rights, shall not be construed to deny or disparage others retained by the people.

Establishes, controversially, that other rights may exist, but it does

not explain how these rights might be justified.

This amendment was used to help establish the right to privacy.

There is debate regarding how often, and how, it ought to be

used.

Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

people.

As we already know from a previous section, this amendment

defines the terminology of federalism.

Procedural Liberties

The “how” of government

Amendments 4 - 8

As suggested above, together these amendments define the parameters of what we know as the Due Process of

Law.

The legal system – from beginning to end – has to follow certain guidelines

to keep it from being an agent of arbitrary power.

Given the power government has to remove an individual’s life,

liberty and property, these amendments restrict the potential

that this power can be used in a discretionary or arbitrary manner.

These are what some people derisively call “technicalities.”

Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.

After the First Amendment, this gets more attention form the courts than almost any other

amendment.

It places limits on the investigative power of law enforcement.

A search must be justified. Police cannot go on “fishing expeditions” casting their nets wide to see what

they can catch.

Searches have to be based on probable cause and be based on a

warrant which states what they are looking for and where they

think they will find it.

But: how broadly will the court define “probable cause?”

What level is suspicion is necessary to justify a search?

An additional area of controversy:

The Exclusionary Rule

Can evidence gathered in an unreasonable search be excluded from being introduced in court?

Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation

This places limits on the arbitrary actions of district attorneys.

The state cannot take anyone to trial that they choose. This power is checked by a group of citizens from the broader community.

Trials can only be justified if an indictment is issued by a grand

jury, they only have one crack at finding a defendant guilty, and defendants can’t be tortured in

order to get evidence.

Areas of Controversy:

Double JeopardyEminent Domain

Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and

district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This applies to trials. Judges must ensure that defendant know what they are accused of, can challenge accusers, have access to a lawyer, and have access to a speedy and public trial before a jury of their

peers.

This limits the arbitrary power of judges.

Again there are significant areas of controversy:

Assistance of Counsel

How competent must public defenders be?

Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined

in any Court of the United States, than according to the rules of the common law.

Eight Amendment: Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted.

This is almost word for word what exists in the English Bill of Rights.

Punishments must be proportional to the crime

Ongoing area of controversy:

Is the death penalty cruel and unusual?

A bit more on the impact of the 14th Amendment.

The 14th Amendment makes these procedures mandatory to the

states.

At least in theory.

The 14th Amendment was written after the Civil War to negate Dred Scott decision. The Supreme Court ruled that Scott was not a citizen

and had no right to sue in the courts.

The 14th Amendment ruled that anyone born in the US was a

citizen and states could not violate their rights (their privileges and

immunities) as Americans.

This included access to the courts.

“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”

The question soon became whether this argument applied to

all other matters raised in the Constitution as well, including the liberties guaranteed in the Bill of

Rights.

Over time these limitations on national power were applied to the states (incorporated) on a case by

case basis.

This process was called selective incorporation

The Selective Incorporation of the Bill of Rights to the States.

- Wikipedia.- Exploring Constitutional Conflicts.

- Free Legal Encyclopedia.

This idea was rejected early on however:

The Slaughter House Cases.

Beginning in early 20th Century a series of cases began to use the

14th Amendment to protect American citizens from the actions

of the states.

Gitlow v New York

The freedom of speech is applied to the states

Mapp v. Ohio

Applied the right against unreasonable searches and

seizures to the states

McDonald v Chicago

Applied the right to keep and bear arms to the states.

What is the current status of incorporation?

From Exploring Constitutional Conflicts:

1st Amendment: Fully incorporated. 2nd Amendment: Fully incorporated. 3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated. 4th Amendment: Fully incorporated. 5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment. 6th Amendment: Fully incorporated. 7th Amendment: Not incorporated. 8th Amendment: Incorporated with respect to the protection against "cruel and unusual punishments," but no specific Supreme Court ruling on the incorporation of the "excessive fines" and "excessive bail" protections.

Study Guide

- Be able to define “civil rights” and understand how they are protected both in the body of the Constitution and the Bill of Rights.- What is the difference between a liberty and a right?- What is the difference between a substantive and procedural freedom?- Why was the Bill of Rights added to the Constitution? What arguments were made in favor and against doing so?- What factors might be used to limit the liberties listed in the Bill of Rights?

- What predecessors influenced the Bill of Rights?- Be able to answer questions about each of the first ten amendments. - How are conflicts over the precise nature of the liberties contained in the Bill of Rights resolved? - What controversies have resulted from loose interpretations of the language in the Bill of Rights? - What impact has the 14th Amendment had on the relationship between the Bill of Rights and the states?

- What are the similarities and differences between the U.S. and Texas Bills of Rights?- What does the U.S. Bill of Rights not guarantee?- What does the First Amendment actually limit? What does this tell us about the overall structure of American government?

(Note that prior to the 14th Amendment, the Bill of Rights

applied only to the national government.)

Basic Fact:

The Texas Constitution does have a unique section called the Bill of Rights. It is the first Article

of the document. It has 33 sections, and has been heavily

amended since it was first written. Most recently in 2009.