essay on civil liberty

Chapter 4: Civil Liberties

What Are Civil Liberties?

Learning objectives.

By the end of this section, you will be able to:

Define civil liberties and civil rights
Describe the origin of civil liberties in the U.S. context
Identify the key positions on civil liberties taken at the Constitutional Convention
Explain the Civil War origin of concern that the states should respect 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. 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 being effectively the same thing—similar to how separation of powers and checks and balances are often used as if they are interchangeable, when in fact they 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 being limitations on government power, intended to protect freedoms that governments may not legally intrude on. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion; the states and the national government cannot forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. You are free to create your own religion and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion may be regulated if it impinges on the rights of others. Similarly, the Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, as we will see later in this chapter, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects.

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 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 his or her 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) .

A photo of three civil rights activists, from left to right, Sidney Poitier, Harry Belafonte, and Charlton Heston.

CIVIL LIBERTIES AND THE CONSTITUTION

The Constitution as written 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: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

Finally, the writ of habeas corpus is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained. 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 the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military court s, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating. [2]

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, with mixed results, to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.

A photo of a group of people in a military commission, seated in chairs around a number of tables arranged in a U shape.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I , Section 9, would suffice, and no separate bill of rights was needed. Alexander Hamilton , writing as Publius in Federalist No. 84, argued that the Constitution was “merely intended to regulate the general political interests of the nation,” rather than to concern itself 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. Later, James Madison , in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” [4]

For that matter, the Articles of Confederation had not included a specific listing of rights either.

However, the Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the elastic clause in Article I, Section 8, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus , whom most scholars believe to be Robert Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” [5]

The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights nearly derailed the ratification process. While some of the 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. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they 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, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights (Figure) .

EXTENDING THE BILL OF RIGHTS TO THE STATES

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. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

In the wake of the Civil War, however, the prevailing thinking about the application of the Bill of Rights to the states changed. 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 former slaves and effectively relegated them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction in Congress demanded that the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the black codes. Their long-term solution was to propose two amendments to the Constitution to guarantee the rights of freed slaves on an equal standing with whites; these rights 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) . But, the right to vote did not yet apply to women or to Native Americans.

Photo A is of John Bingham. Photo B is of Abraham Lincoln.

With the ratification of the Fourteenth Amendment in 1868, civil liberties gained more clarification. 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. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, while others have argued that only some rights are extended. In 1999, Justice John Paul Stevens , writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. [7]

More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. [8]

The second provision of the Fourteenth Amendment that pertains to applying the Bill of Rights to the states is the due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process). Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. [9]

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 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; in other words, 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.

For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try the person for the crime in question. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) But the Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

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. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases. [10]

The Bill of Rights is designed to protect the freedoms of individuals from interference by government officials. Originally these protections were applied only to actions by the national government; different sets of rights and liberties were protected by state constitutions and laws, and even when the rights themselves were the same, the level of protection for them often differed by definition across the states. Since the Civil War, as a result of the passage and ratification of the Fourteenth Amendment and a series of Supreme Court decisions, most of the Bill of Rights’ protections of civil liberties have been expanded to cover actions by state governments as well through a process of selective incorporation. Nonetheless there is still vigorous debate about what these rights entail and how they should be balanced against the interests of others and of society as a whole.

Green v. County School Board of New Kent County , 391 U.S. 430 (1968); Allen v. Wright , 468 U.S. 737 (1984). ↵
Ex parte Milligan , 71 U.S. 2 (1866). ↵
Ex parte Quirin , 317 U.S. 1 (1942); See William H. Rehnquist. 1998. All the Laws but One: Civil Liberties in Wartime . New York: William Morrow. ↵
American History from Revolution to Reconstruction and Beyond, “Madison Speech Proposing the Bill of Rights June 8 1789,” http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php (March 4, 2016). ↵
Constitution Society, “To the Citizens of the State of New-York,” http://www.constitution.org/afp/brutus02.htm (March 4, 2016). ↵
Barron v. Baltimore , 32 U.S. 243 (1833). ↵
Saenz v. Roe , 526 U.S. 489 (1999). ↵
McDonald v. Chicago , 561 U.S. 742 (2010). ↵
Sherbert v. Verner , 374 U.S. 398 (1963). ↵
Near v. Minnesota , 283 U.S. 697 (1931). ↵

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What Are Civil Liberties?

Lumen Learning and OpenStax

Learning Objectives

By the end of this section, you will be able to:

Define civil liberties and civil rights
Describe the origin of civil liberties in the U.S. context
Identify the key positions on civil liberties taken at the Constitutional Convention
Explain the Civil War origin of concern that the states should respect 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. 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 as if they are interchangeable, when in fact they are distinct concepts.

DEFINING CIVIL LIBERTIES

Three civil rights activists, from left to right, Sidney Poitier, Harry Belafonte, and Charlton Heston.

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 being limitations on government power, intended to protect freedoms that governments may not legally intrude on. 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. Unlike most of the rest of the world at the time, U.S. citizens could even create their own faiths and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. 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. The Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects. As we will see later in this chapter, courts are currently debating the degree to which extended solitary confinement and certain forms of capital punishment might count as cruel and unusual.

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. [1] In 2017, the Trump administration began enacting a policy at border entries in El Paso that entailed separating undocumented parents and children as they entered the United States. They expanded that policy in 2018. Today, the government continues to try to reunite families who were separated during that time. [2]

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 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.

LINK TO LEARNING

Founded in 1920, the American Civil Liberties Union (ACLU) is one of the oldest interest groups in the United States. The mission of this non-partisan, not-for-profit organization is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” Many of the Supreme Court cases in this chapter were litigated by, or with the support of, the ACLU. The ACLU offers a listing of state and local chapters on their website.

CIVIL LIBERTIES AND THE CONSTITUTION

The Constitution as written in 1787 did not include a Bill of Rights, although the idea of including one was proposed and, after a 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: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.

Finally, the writ of habeas corpus is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained. 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 the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military courts, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating. [3] In 1919, Justice Oliver Wendell Holmes was the lone dissenter in the Abrams v. United States decision that convicted four young antiwar activists for pamphleteering against the U.S. involvement in the Russian Civil War, which now would be exercised as a clear case of freedom of speech.

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 . [4] 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.

Group of people in a military commission, seated in chairs around a number of tables arranged in a U shape.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I, Section 9, would suffice, and 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 to concern itself 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. Later, James Madison, in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” [5] For that matter, the Articles of Confederation had not included a specific listing of rights either.

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, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors. Thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus, whom most scholars believe to be Robert Yates, wrote, “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its control [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” [6] The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

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. Each of these was extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights.

FINDING A MIDDLE GROUND

Debating the Need for a Bill of Rights

One of the most serious debates between the Federalists and the Anti-Federalists was over the necessity of limiting the power of the new federal government with a Bill of Rights. As we saw in this section, the Federalists believed a Bill of Rights was unnecessary—and perhaps even dangerous to liberty, because it might invite violations of rights that weren’t included in it—while the Anti-Federalists thought the national government would prove adept at expanding its powers and influence and that citizens couldn’t depend on the good judgment of Congress alone to protect their rights.

As George Washington’s call for a bill of rights in his first inaugural address suggested, while the Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, the Anti-Federalists’ fear that the national government might intrude on civil liberties proved to be prescient. In 1798, at the behest of President John Adams during the Quasi-War with France, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These were drafted to allow the president to imprison or deport foreign citizens he believed were “dangerous to the peace and safety of the United States” and to restrict speech and newspaper articles that were critical of the federal government or its officials; the laws were primarily used against members and supporters of the opposition Democratic-Republican Party.

State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the Alien Enemies Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of public debate.

Should the government be able to restrict or censor unpatriotic, disloyal, or critical speech in times of international conflict? What about from government whistle-blowers or employees who leak sensitive information? How much freedom should journalists have to report on stories from the perspective of enemies or to repeat propaganda from opposing forces?

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 . [7] 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. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

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, 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. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver.) Legal scholars and the courts have extensively debated the meaning of this privileges and immunities clause over the years, with some arguing that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, and others arguing that only some rights are extended. In 1999, Justice John Paul Stevens, writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. [8] More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. [9]

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 says, “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. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. [10]

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.

For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try them. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) The Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

CHAPTER REVIEW

See the Chapter 4.1 Review for a summary of this section, the key vocabulary , and some review questions to check your knowledge.

Green v. County School Board of New Kent County, 391 U.S. 430 (1968); Allen v. Wright, 468 U.S. 737 (1984). ↵
"Family Separation under the Trump Administration - a Timeline," Southern Poverty Law Center, 17 June 2020, https:// www.splcenter.org/news/2020/06/17/family-separation-under-trump-administration- timeline. ↵
Ex parte Milligan, 71 U.S. 2 (1866). ↵
Ex parte Quirin, 317 U.S. 1 (1942); See William H. Rehnquist. 1998. All the Laws but One: Civil Liberties in Wartime. New York: William Morrow. ↵
American History from Revolution to Reconstruction and Beyond, "Madison Speech Proposing the Bill of Rights June 8 1789," http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php (March 4, 2016). ↵
Constitution Society, "To the Citizens of the State of New-York," http://www.constitution.org/afp/brutus02.htm (March 4, 2016). ↵
Barron v. Baltimore, 32 U.S. 243 (1833). ↵
Saenz v. Roe, 526 U.S. 489 (1999). ↵
McDonald v. Chicago, 561 U.S. 742 (2010). ↵
Sherbert v. Verner, 374 U.S. 398 (1963). ↵
Near v. Minnesota, 283 U.S. 697 (1931). ↵

limitations on the power of government, designed to ensure personal freedoms

guarantees of equal treatment by government authorities

provisions of the Fifth and Fourteenth Amendments that limit government power to deny people "life, liberty, or property" on an unfair basis

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4.1 What Are Civil Liberties?

Learning objectives.

By the end of this section, you will be able to:

Define civil liberties and civil rights
Describe the origin of civil liberties in the U.S. context
Identify the key positions on civil liberties taken at the Constitutional Convention
Explain the Civil War origin of concern that the states should respect 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. 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. Unlike most of the rest of world at the time, U.S. citizens could even create their own faiths recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. 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. The Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects. As we will see later in this chapter, courts are currently debating the degree to which extended solitary confinement and certain forms of capital punishment might count as cruel and unusual.

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. 2 In 2017, the Trump administration began enacting a policy at border entries in El Paso that entailed separating undocumented parents and children as they entered the United States. They expanded that policy in 2018. Today, the government continues to try to reunite families who were separated during that time. 3

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 ).

Link to Learning

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.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or who seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

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.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of named or enumerated powers of Congress, along with the limitations on those powers in Article I , Section 9 of the Constitution, 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. Later, James Madison , in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” 6 Neither had the Articles of Confederation included a specific listing of rights, even if it was predictable that state governments would differ in what they would tolerate, grant, and prohibit among their citizens.

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 of the Constitution 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. One of the Anti-Federalists, Brutus , whom most scholars believe to be Robert Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” 7 The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard. While the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

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 of the 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. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they 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. Each of these were extensively debated in both houses of Congress and, ultimately, proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights ( Table 4.1 ).

Finding a Middle Ground

Debating the need for a bill of rights.

As George Washington’s call for a bill of rights in his first inaugural address suggested, while the Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, the Anti-Federalists' fear that the national government might intrude on civil liberties proved to be prescient. In 1798, at the behest of President John Adams during the Quasi-War with France, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These laws were drafted to allow the president to imprison or deport foreign citizens that he believed were “dangerous to the peace and safety of the United States” and to restrict speech and newspaper articles critical of the federal government or its officials. The laws were primarily used against members and supporters of the opposition, the Democratic-Republican Party.

State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be ruled unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the Alien Enemies Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of intense public debate.

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 . 8 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. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

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. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years, with some arguing that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, and others arguing that only some rights are extended. In 1999, Justice John Paul Stevens , writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. 9 More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. 10

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. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. 11

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.

For example, under the Fifth Amendment , a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try them. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) The Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

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Authors: Glen Krutz, Sylvie Waskiewicz, PhD
Publisher/website: OpenStax
Book title: American Government 3e
Publication date: Jul 28, 2021
Location: Houston, Texas
Book URL: https://openstax.org/books/american-government-3e/pages/1-introduction
Section URL: https://openstax.org/books/american-government-3e/pages/4-1-what-are-civil-liberties

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By John Stuart Mill

THE SUBJECT of this Essay is not the so-called Liberty of the Will, so unfortunately opposed to the misnamed doctrine of Philosophical Necessity; but Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. It is so far from being new, that, in a certain sense, it has divided mankind, almost from the remotest ages; but in the stage of progress into which the more civilized portions of the species have now entered, it presents itself under new conditions, and requires a different and more fundamental treatment…. [From the Introductory]

First Pub. Date

London: Longman, Roberts, & Green Co.

4th edition.

The text of this edition is in the public domain. Picture of John Stuart Mill courtesy of The Warren J. Samuels Portrait Collection at Duke University.

Introductory.

The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the Government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who derived their authority from inheritance or conquest, who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed on by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying upon the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which, if he did infringe, specific resistance, or general rebellion, was held to be justifiable. A second, and generally a later expedient, was the establishment of constitutional checks, by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and, to attain this, or when already in some degree possessed, to attain it more completely, became everywhere the principal object of the lovers of liberty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point.

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation’s own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.

But, in political and philosophical theories, as well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of an usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth’s surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was now perceived that such phrases as “self-government,” and “the power of the people over themselves,” do not express the true state of the case. The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says, a second nature, but is continually mistaken for the first. The effect of custom, in preventing any misgiving respecting the rules of conduct which mankind impose on one another, is all the more complete because the subject is one on which it is not generally considered necessary that reasons should be given, either by one person to others, or by each to himself. People are accustomed to believe, and have been encouraged in the belief by some who aspire to the character of philosophers, that their feelings, on subjects of this nature, are better than reasons, and render reasons unnecessary. The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person’s mind that everybody should be required to act as he, and those with whom he sympathizes, would like them to act. No one, indeed, acknowledges to himself that his standard of judgment is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person’s preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people’s liking instead of one. To an ordinary man, however, his own preference, thus supported, is not only a perfectly satisfactory reason, but the only one he generally has for any of his notions of morality, taste, or propriety, which are not expressly written in his religious creed; and his chief guide in the interpretation even of that. Men’s opinions, accordingly, on what is laudable or blameable, are affected by all the multifarious causes which influence their wishes in regard to the conduct of others, and which are as numerous as those which determine their wishes on any other subject. Sometimes their reason—at other times their prejudices or superstitions: often their social affections, not seldom their antisocial ones, their envy or jealousy, their arrogance or contemptuousness: but most commonly, their desires or fears for themselves—their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. The morality between Spartans and Helots, between planters and negroes, between princes and subjects, between nobles and roturiers, between men and women, has been for the most part the creation of these class interests and feelings: and the sentiments thus generated, react in turn upon the moral feelings of the members of the ascendant class, in their relations among themselves. Where, on the other hand, a class, formerly ascendant, has lost its ascendancy, or where its ascendancy is unpopular, the prevailing moral sentiments frequently bear the impress of an impatient dislike of superiority. Another grand determining principle of the rules of conduct, both in act and forbearance, which have been enforced by law or opinion, has been the servility of mankind towards the supposed preferences or aversions of their temporal masters, or of their gods. This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. Among so many baser influences, the general and obvious interests of society have of course had a share, and a large one, in the direction of the moral sentiments: less, however, as a matter of reason, and on their own account, than as a consequence of the sympathies and antipathies which grew out of them: and sympathies and antipathies which had little or nothing to do with the interests of society, have made themselves felt in the establishment of moralities with quite as great force.

The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. And in general, those who have been in advance of society in thought and feeling, have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details. They have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether its likings or dislikings should be a law to individuals. They preferred endeavouring to alter the feelings of mankind on the particular points on which they were themselves heretical, rather than make common cause in defence of freedom, with heretics generally. The only case in which the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there, is that of religious belief: a case instructive in many ways, and not least so as forming a most striking instance of the fallibility of what is called the moral sense: for the odium theologicum, in a sincere bigot, is one of the most unequivocal cases of moral feeling. Those who first broke the yoke of what called itself the Universal Church, were in general as little willing to permit difference of religious opinion as that church itself. But when the heat of the conflict was over, without giving a complete victory to any party, and each church or sect was reduced to limit its hopes to retaining possession of the ground it already occupied; minorities, seeing that they had no chance of becoming majorities, were under the necessity of pleading to those whom they could not convert, for permission to differ. It is accordingly on this battle field, almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients, openly controverted. The great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realized, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale. In the minds of almost all religious persons, even in the most tolerant countries, the duty of toleration is admitted with tacit reserves. One person will bear with dissent in matters of church government, but not of dogma; another can tolerate everybody, short of a Papist or an Unitarian; another, every one who believes in revealed religion; a few extend their charity a little further, but stop at the belief in a God and in a future state. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed.

In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe; and there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it; and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control; insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the particular instances of its application. There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.

It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil, is, comparatively speaking, the exception. Yet there are many cases clear enough and grave enough to justify that exception. In all things which regard the external relations of the individual, he is de jure amenable to those whose interests are concerned, and if need be, to society as their protector. There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion, than when controlled in any way in which society have it in their power to control him; or because the attempt to exercise control would produce other evils, greater than those which it would prevent. When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgment seat, and protect those interests of others which have no external protection; judging himself all the more rigidly, because the case does not admit of his being made accountable to the judgment of his fellow-creatures.

But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived.

No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions of personal, as of social excellence. The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens; a mode of thinking which may have been admissible in small republics surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom. In the modern world, the greater size of political communities, and above all, the separation between spiritual and temporal authority (which placed the direction of men’s consciences in other hands than those which controlled their worldly affairs), prevented so great an interference by law in the details of private life; but the engines of moral repression have been wielded more strenuously against divergence from the reigning opinion in self-regarding, than even in social matters; religion, the most powerful of the elements which have entered into the formation of moral feeling, having almost always been governed either by the ambition of a hierarchy, seeking control over every department of human conduct, or by the spirit of Puritanism. And some of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been noway behind either churches or sects in their assertion of the right of spiritual domination: M. Comte, in particular, whose social system, as unfolded in his Système de Politique Positive, aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.

Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable. The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.

It will be convenient for the argument, if, instead of at once entering upon the general thesis, we confine ourselves in the first instance to a single branch of it, on which the principle here stated is, if not fully, yet to a certain point, recognised by the current opinions. This one branch is the Liberty of Thought: from which it is impossible to separate the cognate liberty of speaking and of writing. Although these liberties, to some considerable amount, form part of the political morality of all countries which profess religious toleration and free institutions, the grounds, both philosophical and practical, on which they rest, are perhaps not so familiar to the general mind, nor so thoroughly appreciated by many even of the leaders of opinion, as might have been expected. Those grounds, when rightly understood, are of much wider application than to only one division of the subject, and a thorough consideration of this part of the question will be found the best introduction to the remainder. Those to whom nothing which I am about to say will be new, may therefore, I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.

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Civil Liberties Vs Civil Rights in The Us

Categories: Civil Liberties Civil Rights Political Correctness

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Published: May 14, 2021

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Running into change: How music influences Civil Rights

Sam Cooke was watching the 1963 March on Washington when a young Bob Dylan began to sing “Only a Pawn in Their Game,” a song about the assassination of civil rights activist Medgar Evers and the institutional oppression Dylan believed was responsible for weaving bigotry into the tapestry of American society.

Cooke, an already successful soul musician was “inspired by Dylan’s lyrics, just as he had been by Pete Seeger’s ‘If I Had a Hammer,’” according to the Library of Congress. The culmination of observing the brave Civil Rights Movement leaders of the time and the hostility Cooke faced daily as an African American living under Jim Crow laws in the South prompted him to write “A Change is Gonna Come,” a civil rights anthem that echoed the cry for equality that fell on dozens of deaf ears.

“I go to the movie / And I go downtown / And somebody keep telling me / ‘Don’t hang around’ It’s been a long / A long time coming, but I know / A change gon’ come.”

The proclamation of “A Change is Gonna Come” is one of anguish and distress yet hope for the reflection of the declaration that “All men are created equal” to be shown in the American legal system. Cooke’s plea would in part be answered by the Civil Rights Act of 1964 and the Voting Rights Act of 1965. However, racism cannot completely be cured by laws, as it is not exclusively a legal issue. Racism is a spiritual issue above all else.

This is why music played such a powerful role in the Civil Rights Movement. It’s unique ability to get through to people often surpasses that of laws, as music is inherently more emotional. Additionally, music is something that anyone can participate in to some extent, making it a useful tool to unify a diverse group of people. The role of musicians, like Sam Cooke, Bob Dylan and Pete Seeger, in the fight for civil rights will never be fully understood, as the spiritual effect of music cannot be measured.

When Sam Cooke wrote, “I was born by the river / In a little tent / Oh, and just like the river, I’ve been running / Ever since,” he was not only telling his story, he was telling the story of the unheard and unwelcome members of society. He was running from a disheartening past to a future in which people like him could truly be free.

For all freedom-seekers like Sam Cooke, the future may be filled with successes that extend freedom’s reach, but true and lasting freedom will come through Christ alone. Only through him will one be finally free from the laws of man and the bigotry of many. “For freedom Christ has set us free; stand firm therefore, and do not submit again to a yoke of slavery” (Galatians 5:1).

Kilker is the opinion editor for the Liberty Champion

Handout A: Exploring Civil and Economic Liberty Essay

Handout A: Exploring Civil and Economic Freedom Essay

When you hear the term “civil rights,” which rights come to mind? Perhaps they include freedom of speech and assembly, the right to vote, and other actions frequently associated with political participation. More broadly, however, civil rights refer to any legally enforceable freedom of action. Some civil rights—e.g., life, liberty, and the pursuit of happiness—were so fundamental, so inextricably linked to a free society, that the Framers considered them to be inalienable. That is, they could not be voluntarily waived or surrendered. If, for instance, someone consented to labor for another, that consent could be revoked at any time.

To Enlightenment thinkers, classical liberals, British colonists in America, and, later, the Founding generation, the right to private property was intimately connected to the individual. Put another way, it was inalienable. A particular property could of course be sold or otherwise surrendered, but not the right to own and control property per se. John Locke argued that the right to own and control a piece of land, for example, arose by laboring to improve the land or draw resources from it. The Framers also understood property as encompassing much more than tangible objects or land. Conscience, according to James Madison, was “the most sacred of all property.”

Property and its owners, then, were bound together as intimately as individuals and their expressive activities—our freedom of speech, our right to march in protest, our right to cast ballots for our preferred policies and candidates. Our property—our beliefs, our opinions, our faculties, our things—is part of who we are. The ability to freely pursue property in all its forms was considered an essential freedom. It was at the heart of the pursuit of happiness.

While we may define “happiness” today in terms of contentment or even entertainment, to 18th century Americans the idea meant much more. Happiness encompassed the ability to take care of oneself and one’s family, to build wealth and enjoy the fruits of one’s labor. It was attained by living in liberty and by practicing virtue. Understanding the term as the Founders did is key to our understanding of the Declaration’s pronouncement that governments are instituted to protect our inalienable rights to “life, liberty, and the pursuit of happiness.”

Debate Over a Bill of Rights

The Constitution was written with several ends in mind. Listed in the Preamble, they had the multi-generational goal of ensuring “the blessings of liberty to ourselves and our posterity.” The now-familiar constitutional principles such as separation of powers, checks and balances, and our federal system served to limit and divide power in order to prevent tyranny and frustrate excessive government control over individual liberties.

With this purpose and structure in place, the Constitution submitted to the states for approval in 1787 did not contain a bill of rights. The Federalists, who supported the Constitution as written, argued that bills of rights were needed only against kings who wielded unlimited power, but they weren’t necessary for a free, popular government of enumerated powers. As Alexander Hamilton wrote in Federalist 84 , “[W]hy declare that things shall not be done which there is no power to do?”

Federalists went even further. Hamilton and Madison argued that the addition of a bill of rights was not only unnecessary, but could even be dangerous. Rights were sacred spaces around sovereign individuals into which government could not justly intrude. Carving out certain secured rights might cause people to think that, but for those few exceptions, other rights were not secured. In short, a bill of rights at the end of the Constitution might result in a massive increase in government power that would turn the very idea of limited government on its head.

Madison’s Promise and the Ninth Amendment

Several states sent lists of proposed amendments to Congress. With the Constitution still in doubt, Madison promised that Congress would take up a bill of rights after ratification. In the summer of 1789, he kept his promise and introduced draft amendments in the House. Mindful of his own warning against identifying a limited list of rights, Madison included what would ultimately become the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment would be a signal that while government powers were few and definite, the rights of naturally-free individuals were indefinite and numerous, even innumerable.

Though maligned in modern times by the late Supreme Court nominee Robert Bork as an “inkblot,” the amendment served in the Founding era, and was intended to serve for all time, as a reminder that the list of individual rights and due process protections in the Bill of Rights was not exhaustive. Madison wrote later in 1792, “As a man is said to have a right to his property, he may be equally said to have a property in his rights.”

The Supreme Court and Liberty

Congress approved twelve amendments and sent them to the states for ratification. Of those 12, the states ratified ten, which became the Bill of Rights in 1791. Because the limits on government applied only at the federal level and the scope of federal power was relatively small, federal lawmaking faced few constitutional challenges for several decades. The states, however, were not subject to the federal Bill of Rights and condoned numerous violations—slavery being the most egregious.

Not until the 14th Amendment, ratified 77 years later in 1868, were the states prevented from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States; … deprive any person of life, liberty, or property, without due process of law; [or] deny to any person within its jurisdiction the equal protection of the laws.”

But which rights would be protected from unjust abrogation by state governments? Through a series of cases involving rights ranging from freedom of religion to protection against cruel and unusual punishment, the Supreme Court identified the rights that would be “incorporated,” i.e., applied to limit state power. Generally, the Court asked whether claimed rights were “fundamental,” which depended in turn on whether they were “implicit in the concept of ordered liberty” or “rooted in the traditions and conscience of our people.” Not all rights qualified, and that meant some rights would be less vigorously protected than others.

In cases like Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) the right to liberty was interpreted broadly. Under the 14th Amendment’s Due Process Clause, the Court protected the right to educate one’s children in a private school ( Pierce ) and the right to teach young children a foreign language ( Meyer ). Further, the Court held in Meyer, if government wanted to bring about an outcome in society, no matter how noble, it could not go about reaching that goal via unconstitutional means. “That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected…a desirable end cannot be promoted by prohibited means.”

In Lochner v. New York (1905), the Court struck down a state law limiting the number of hours bakers could work. The Court held that a law of this scope was outside of the legislature’s constitutional power, and that citizens’ liberty included the right to earn an honest living, as well as the right for employers and employees to enter into contracts. This case began what is now called the “ Lochner Era” during which the Court interpreted the Due Process Clause of the Fourteenth Amendment as protecting economic rights to the same degree as other personal rights. For this reason, and because the Court’s rulings came into direct conflict with Congress’s attempts to intervene in the marketplace and redistribute wealth, many regard Lochner Era rulings as examples of judicial activism.

The New Deal and the Switch in Time that Saved Nine

After several economic regulations advanced by President Franklin D. Roosevelt’s administration were struck down by the Court’s conservative bloc, Roosevelt proposed the Judicial Procedures Reform Bill of 1937, giving the President the power to appoint a new justice to the high Court for each current justice over the age of 70-1/2. This would have resulted in six new justices at that time. In what is now called “the switch in time that saved nine,” Justice Owen Roberts, who often sided with the conservatives, voted to uphold a Washington state minimum wage law for women. That case, West Coast Hotel v. Parrish (1937) marked the end of the Lochner Era. The new Court majority held that “deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process.”

While the Supreme Court had previously treated individual economic freedom as fundamental to “ordered liberty” under the Due Process Clause, after 1937 these rights were to be subordinated. Moreover, another part of the 14th Amendment, the Privileges or Immunities clause, offered no further protection. Decades earlier in the Slaughterhouse Cases (1873), the Court had limited the scope of “privileges or immunities” to activities such as petitioning government, access to navigable waters, and the writ of habeas corpus . Economic rights were not included.

In U.S. v. Carolene Products Company (1938), the Court held that Congress could ban “filled milk” as a health hazard (a charge for which there was no evidence, but which protected large corporate milk producers from smaller competitors selling a lower-cost product). “Filled milk” refers to skim milk to which some form of fat other than milk fat has been added. Often vegetable oil was used. The result resembled cream, but was less expensive. Carolene might have been just another case upholding Congress’s power to regulate economic activity, but a single footnote supplied a rationale for elevating some rights over others.

In Footnote 4, the Court established a hierarchy of rights. In the top tier, entitled to the highest level of protection, are “fundamental” rights such as some of those secured by the first ten amendments to the Constitution, access to key political processes such as voting, and equal treatment of “discrete and insular minorities.” Government restrictions on those rights are rigorously scrutinized to determine their necessity and effectiveness. To be upheld, a restriction must be narrowly tailored to serve a compelling government interest. By contrast, in the bottom tier, are “non-fundamental” economic liberties such as the right to own property and earn an honest living. Government regulation of economic liberties is subject only to a “rational basis” test: The regulation is presumed to be constitutional; the burden is on the citizen to prove it is not; and the regulation will be upheld if it is reasonably related to a legitimate government purpose.

The history of the Court’s treatment of various rights suggests that certain types of activities—the ones we think of today as implicating “civil rights”—receive the greatest constitutional protection. The question whether other rights just as fundamental to our nature have been “den[ied] or disparage[d]” should be the subject of searching inquiry.

Critical Thinking Questions

How did the Founding generation understand “property”?
What was a chief reason that Federalists opposed a listing of specific liberties (a bill of rights)?
Which branch of government do you believe is best suited to determine which rights government cannot infringe? Why?
Was the Court right in Carolene Products to distinguish between types of rights? Explain.
Are civil and economic liberties different? If so, why? If not, why not?
Does Footnote 4 of Carolene Products prove the Federalists right about the dangers of listing certain rights at the end of the Constitution, or was the footnote consistent with the Constitution and the goal of protecting liberty?

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Harvard Civil Rights – Civil Liberties Law Review 56th Annual Conference

April 13, 2024

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Join Harvard Law School’s CR-CL law review at its annual symposium, which will touch on litigating for transgender rights, proliferating indigenous sovereignty through federal Indian law and tribal law, and honoring Professor Ogletree’s legacy by reflecting on the state of affairs of fighting discrimination. Food will be provided throughout the day.

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ACLU Brief Urges Supreme Court to Reject Trump Immunity Claims

WASHINGTON — The American Civil Liberties Union and ACLU of the District of Columbia filed a friend-of-the-court brief today in the Supreme Court in Trump v. United States , arguing that former President Trump is not immune from criminal prosecution, and that the U.S. Constitution and decades of Supreme Court precedent support the principle that nobody is above the law — even the president.

In Trump v. United States , former President Trump is asking the Supreme Court to rule that he cannot be held criminally liable for any official acts as president, even after leaving office. But the ACLU’s amicus brief explains that this view is unsupported by the text and history of the Constitution, and contrary to the separation of powers.

“Allowing former presidents to skirt accountability for criminal acts would effectively place them above the law. That result would embolden authoritarians and encourage corruption at the highest levels of government,” said ACLU National Legal Director David Cole . “The United States does not have a king, and former presidents have no claim to being above the law. A functioning democracy depends on our ability to critically reckon with the troubling actions of government officials and hold them accountable.”

The brief argues that presidents have long recognized that while presidents cannot be prosecuted criminally while in office, they can be prosecuted after leaving office. That is why President Gerald Ford deemed it necessary to pardon President Richard Nixon in 1974 following the Watergate scandal – a pardon that would have been unnecessary were Nixon immune from criminal prosecution.

Trump himself, while in office, twice took the position that he could be prosecuted criminally after leaving office. But now that he actually faces those charges, he has reversed his prior position. No other president has asserted that presidents can never be prosecuted for official acts that violate criminal law.

“Few principles are more dangerous to our freedoms and rights than Donald Trump’s view that the highest office in our government is the least accountable,” said Scott Michelman, Legal Director, ACLU of the District of Columbia. “Public accountability is essential to maintain our democracy. We urge the Supreme Court to reject the frightening assertion that presidents are above the law.”

The brief warns that there are “few propositions more dangerous” in a democracy than the notion that an elected head of state is above the law, and urges the Supreme Court to reject this extraordinary assertion.

“The President’s accountability to the law is an integral part of the separation of powers and the rule of law. If the President is free, as counsel for the former President argued below, to order the assassination of his political opponents and escape all criminal accountability even after he leaves office, both of these fundamental principles of our system would have a fatal Achilles’ heel,” the brief reads.

The ACLU’s brief in Trump v. United States is part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket .

Trump v. United States

Source: American Civil Liberties Union

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Guest Essay

Trump’s Backers Are Determined Not to Blow It This Time Around

Two woman — one dressed in light blue, the other in black — sit on either side of a chair that has a pillow with “U.S.A.” on it and a flag design with two patches that read “Trump Tribe” and “Trump Tribe Texas.”

By Thomas B. Edsall

Mr. Edsall contributes a weekly column from Washington, D.C., on politics, demographics and inequality.

In a rare display of unity, more than 100 conservative tax-exempt organizations have joined forces in support of Donald Trump and the MAGA agenda, forming a $2 billion-plus political machine.

Together, these organizations are constructing a detailed postelection agenda, lining up prospective appointees and backing Trump in his legal battles.

Most of the work performed by these nonprofit groups is conducted behind closed doors. Unlike traditional political organizations, these groups do not disclose their donors and must reveal only minimal information on expenditures. In many cases, even this minimal information will not be available until after the 2024 election.

Nonprofits like these are able to maintain a cloak of secrecy by positioning themselves as charitable organizations under section 501(c)(3 ) of the tax code or as social welfare organizations under section 501(c)(4 ).

Not only are these tax-exempt organizations attractive to large contributors who want to keep their roles secret; 501(c)(3) groups have an added benefit: Donors can deduct their gifts from their taxable incomes.

The benefits don’t end there. The minimal reporting requirements imposed on political nonprofits lend themselves to self-dealing, particularly the payment of high salaries and consulting fees, and the award of contracts to for-profit companies owned by executives of the charitable groups.

“The growth of these groups is largely flying under the radar,” Sean Westwood , a political scientist at Dartmouth, wrote by email in response to my inquiry. “This level of coordination is unprecedented.”

Theda Skocpol , a professor of government and sociology at Harvard, replying by email to my inquiry, wrote, “These are detailed plans to take full control of various federal departments and agencies from the very start and to use every power available to implement radical ethnonationalist regulations and action plans.”

This activity, Skocpol continued, amounts to a “full prep for an authoritarian takeover, buttressed by the control Trump and Trumpists now have over the G.O.P. and its apparatuses.”

In this drive by the right to shape policy, should Trump win, there are basically three power centers.

The first is made up of groups pieced together by Leonard Leo , a co-chairman of the Federalist Society, renowned for his role in the conservative takeover of the Supreme Court and of many key posts in the federal and state judiciaries.

If cash is the measure, Leo is the heavyweight champion. Two years ago, my Times colleagues Kenneth P. Vogel and Shane Goldmacher disclosed that a little-known Chicago billionaire, Barre Seid , who made his fortune manufacturing electronic equipment, turned $1.6 billion over to the Marble Freedom Trust , a tax-exempt organization created by Leo in 2021, helping to turn it into a powerhouse.

The second nexus of right-wing tax-exempt groups is the alliance clustered on Capitol Hill around the intersection of Third Street Southeast and Independence Avenue — offices and townhouses that fashion themselves as Patriots’ Row .

Former Trump campaign aides, lawyers and executive appointees, including Mark Meadows , Stephen Miller , Edward Corrigan and Cleta Mitchell , run these organizations. After Trump was defeated in 2020, the cash flow to these groups surged.

The third center is coordinated by the Heritage Foundation , which, under the leadership of Kevin D. Roberts , who assumed its presidency in 2021, has become a committed ally of the MAGA movement.

Heritage, in turn, has created Project 2025 in preparation for a potential Trump victory in November. In a statement of purpose, the project declared:

It is not enough for conservatives to win elections. If we are going to rescue the country from the grip of the radical left, we need both a governing agenda and the right people in place, ready to carry this agenda out on Day 1 of the next conservative administration.

There are more than 100 members of Project 2025, and they include not only most of the Patriots’ Row groups but also much of the Christian right and the anti-abortion movement.

In the view of Lawrence Rosenthal , the chairman and founder of the Berkeley Center for Right-Wing Studies, the convergence of so many conservative organizations leading up to the 2024 election marks a reconciliation, albeit partial, between the two major wings of the Republican Party: the more traditional market fundamentalists and the populist nationalists.

“In 2024,” Rosenthal wrote by email,

the free-market fundamentalists are making their peace on a more basic level than simply tax cuts. Their historic long-term goal — rolling back the federal government to pre-New Deal levels — corresponds to the nationalists’ goal of “deconstruction of the administrative state.” This is what the likes of the now thoroughly MAGA-fied Heritage Foundation is putting together. Recasting the administrative state as the “deep state,” a veritable launchpad for conspiracy-mongering innuendo, easily brings the populists along for the ride despite a “What’s the Matter With Kansas”-like abandonment of their own economic interests on the part of a sector of the population particularly dependent on the range of targets like Social Security and Medicare that the administrative-state deconstructors have in their sights. In return the populists are seeing avatars of Christian nationalism in unprecedented roles of political power — to wit, the current speaker of the House.

The populist-nationalist wing has an agenda that “goes beyond what the free-market fundamentalists have had in mind,” Rosenthal continued:

The model here is by now explicitly Orbanism in Hungary — what Viktor Orban personally dubbed “illiberal democracy.” By now, MAGA at all levels — CPAC, media, Congress, Trump himself — has explicitly embraced Orban. Illiberal regimes claim legitimacy through elections but systematically curtail civil liberties and checks and balances, structurally recasting political institutions so as to make their being voted out of office almost unrealizable.

The centerpiece of Leo’s empire of right-wing groups is the Marble Freedom Trust. The trust described its mission in a 2022 report to the I.R.S.: “To maintain and expand human freedom consistent with the values and ideals set forth in the Declaration of Independence and the Constitution of the United States.”

In 2016, according to an April 2023 I.R.S. complaint against Leo filed by the Campaign for Accountability , a liberal reform advocacy group, Leo created a consulting company, BH Group, and in 2020 acquired a major ownership interest in CRC Advisors . Both are for-profit entities based in Virginia.

The Campaign for Accountability’s complaint alleges that “Leo-affiliated nonprofits” paid BH Group and CRC Advisors a total of $50.3 million from 2016 to 2020. During this period, according to the complaint, Leo’s lifestyle changed:

In August 2018, he paid off the 30-year mortgage on the McLean, Va., home, most of which was still outstanding on the payoff date. Later that same year, Leonard Leo bought a $3.3 million summer home with 11 bedrooms in Mount Desert, an affluent seaside village on the coast of Maine, using, in part, a 20-year mortgage of $2,310,000. Leonard Leo paid off the entire balance of that mortgage just one year later in July 2019. In September 2021, Leonard Leo bought a second home in Mount Desert for $1.65 million.

The complaint was based partly on a March 2023 Politico story by Heidi Przybyla. She wrote that her “investigation, based on dozens of financial, property and public records dating from 2000 to 2021, found that Leo’s lifestyle took a lavish turn beginning in 2016,” citing Leo’s purchases of the Maine properties, along with “four new cars, private school tuition for his children, hundreds of thousands of dollars in donations to Catholic causes and a wine locker at Morton’s Steakhouse.”

In October 2023, Przybyla disclosed (also in Politico ) that Leo was refusing to cooperate with an investigation by Brian Schwalb , the attorney general for the District of Columbia, “for potentially misusing nonprofit tax laws for personal enrichment.”

In a study covering more recent data , Accountable US , another liberal reform group, reported that from 2020, when Leo acquired a share of CRC Advisors, to 2022, seven “groups with immediate ties to Leo’s network have made payments totaling at least $69.77 million to CRC Advisors.”

Those figures were confirmed by Bloomberg’s Emily Birnbaum , who reported that “the sums paid to CRC Advisors by seven nonprofit groups have doubled since Leo came aboard as co-owner and chairman in 2020.”

Leo defended the payments, telling Bloomberg that criticism of the money flowing to CRC Advisors is “baseless” and that CRC performs high-quality work. “CRC Advisors employs nearly 100 best-in-class professionals that put its clients’ money to work,” he told Bloomberg.

In the drive to set the stage for a future Trump administration, the second conservative power center is dominated by the Conservative Partnership Institute , which coordinates its own pro-Trump network.

From 2018 to 2020, the Conservative Partnership was a minor player in Washington’s right-wing community. In that period, according to its 990 report to the I.R.S., its revenues totaled $16.9 million. In the next two years, donations shot up to $80.7 million.

Seven executives at the partnership in 2022 made in excess of $300,000 a year, topped by Meadows, Trump’s last White House chief of staff, whose annual compensation at the Conservative Partnership totaled $889,687 in 2022.

The Conservative Partnership and allied groups do not disclose donors, and none of the data on how much they raised and spent in 2023 and 2024 — or the identities of grant recipients — will be available before Nov. 5, 2024, Election Day.

The Conservative Partnership, like many of its sister groups, filed its 990 reports to the I.R.S. for 2020, 2021 and 2022 on Nov. 15 of each following year. If that pattern continues, its reports covering 2023 and 2024 will not be filed until Nov. 15 of the next year.

The partnership lists its address as 300 Independence Avenue Southeast in Washington, a three-story office building on Patriots’ Row that was originally the German-American Building Association.

Groups using the same mailing address include the Center for Renewing America (“God, country and community are at the heart of this agenda”), the Election Integrity Network (“Conservative leaders, organizations, public officials and citizens dedicated to securing the legality of every American vote”), Compass Legal Group , American Creative Network (“We will redefine the future of media-related conservative collaboration”), the American Accountability Foundation (“Exposing the truth behind the people and policies of the Biden administration that threaten the freedoms of the American people”), America First Legal (“Fighting back against lawless executive actions and the radical left”), Citizens for Renewing America and Citizens for Sanity (“To defeat ‘wokeism’ and anti-critical-thinking ideologies that have permeated every sector of our country”).

Since it was formed in 2020, Stephen Miller’s America First Legal foundation has been a case study in rapid growth. In its first year, it raised $6.4 million. In 2021 this rose to $44.4 million and to $50.8 million in 2022.

America First lawyers wrote two of the amicus briefs arguing to the Supreme Court that Trump should be restored to Colorado’s ballot . In one of the briefs , America First defended Trump’s actions and language on Jan. 6, 2021:

President Trump did not “engage in” insurrection. To engage in something is to take an active, personal role in it. Comparisons in modern language abound. When news emerges that nations have “engaged in military exercises,” one expects to read that “ships and planes” have been deployed, not tweets or press releases. Similarly, if someone has been described as “engaging in violence,” one expects that the person being spoken about has himself used force on another — not that he has issued some taunt about force undertaken by a third party. Engaging in a matter and remarking publicly about it are not the same, even with matters as weighty as wars or insurrections.

While the Heritage Foundation had relatively modest revenues of $95.1 million in 2022, according to its I.R.S. filing , its Project 2025 has become an anchor of the MAGA movement.

Trump has said he does not feel bound to accept all of the Project 2025 proposals, but the weight of institutional support from the right and Trump’s lack of interest in detailed planning suggest that those proposals may well shape much of the agenda in the event of a Trump victory.

The authors of Project 2025 want to avoid a repetition of 2017, when Trump took office with scant planning and little notion of who should be appointed to key positions.

Spencer Chretien , an associate director of Project 2025, put this concern delicately in a January 2023 essay published by The American Conservative , pointedly avoiding any criticism of Trump:

In November 2016, American conservatives stood on the verge of greatness. The election of Donald Trump to the presidency was a triumph that offered the best chance to reverse the left’s incessant march of progress for its own sake. Many of the best accomplishments, though, happened only in the last year of the Trump administration, after our political appointees had finally figured out the policies and process of different agencies, and after the right personnel were finally in place.

One function of the project is to put as much ideological muscle as possible behind Trump to ensure that if he wins the White House again, he does not wander afield.

From the vantage point of the right, that muscle is impressive, ranging from Oren Cass’s populist American Compass to Susan B. Anthony Pro-Life America , from the tradition-minded American Conservative to the Independent Women’s Forum .

In the foreword to the project’s nearly 1,000-page description of its 2025 agenda, “ Mandate for Leadership: The Conservative Promise ,” Roberts, the president of Heritage, wrote:

This book is the work of the entire conservative movement. As such, the authors express consensus recommendations already forged, especially along four broad fronts that will decide America’s future: 1. Restore the family as the centerpiece of American life and protect our children. 2. Dismantle the administrative state and return self-governance to the American people. 3. Defend our nation’s sovereignty, borders and bounty against global threats. 4. Secure our God-given individual rights to live freely — what our Constitution calls “the blessings of liberty.”

Perhaps the most impressive part of Project 2025 is the detailed and ideologically infused discussion of virtually every federal department and agency, all guided by the goal of instituting conservative policies.

Take the 53-page chapter, including 87 footnotes, focused on the Department of Health and Human Services, written by Roger Severino , the vice president for domestic policy at Heritage. The top priority of the department in January 2025, he wrote, must be “protecting life, conscience and bodily integrity.” The secretary “must ensure that all H.H.S. programs and activities are rooted in a deep respect for innocent human life from Day 1 until natural death: Abortion and euthanasia are not health care.”

Going deeper, Severino contended that the department must flatly reject “harmful identity politics that replaces biological sex with subjective notions of ‘gender identity’ and bases a person’s worth on his or her race, sex or other identities. This destructive dogma, under the guise of ‘equity,’ threatens American’s fundamental liberties as well as the health and well-being of children and adults alike.”

Severino did not stop there. In his view, the department must be in the business of “promoting stable and flourishing married families” because “in the overwhelming number of cases, fathers insulate children from physical and sexual abuse, financial difficulty or poverty, incarceration, teen pregnancy, poor educational outcomes, high school failure and a host of behavioral and psychological problems.”

Regarding the Centers for Disease Control and Prevention, in Severino’s analysis:

By statute or regulation, C.D.C. guidance must be prohibited from taking on a prescriptive character. For example, never again should C.D.C. officials be allowed to say in their official capacity that schoolchildren “should be” masked or vaccinated or prohibited from learning in a school building. Such decisions should be left to parents and medical providers.

At the start of the book, Paul Dans , the executive director of Project 2025, pointedly wrote that “it’s not 1980,” when Heritage produced the first “Mandate for Leadership” to guide the incoming administration of Ronald Reagan. Instead, Dans argued, the United States in 2024 is at an apocalyptic moment:

The game has changed. The long march of cultural Marxism through our institutions has come to pass. The federal government is a behemoth, weaponized against American citizens and conservative values, with freedom and liberty under siege as never before. The task at hand to reverse this tide and restore our republic to its original moorings is too great for any one conservative policy shop to spearhead. It requires the collective action of our movement. With the quickening approach of January 2025, we have one chance to get it right.

This time, the conservative movement plans to exercise maximum surveillance over an incoming Trump administration. In other words, there will be no kidding around.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here's our email: [email protected] .

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An earlier version of this article misspelled the surname of an associate director of Project 2025. He is Spencer Chretien, not Chretian.

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Thomas B. Edsall has been a contributor to the Times Opinion section since 2011. His column on strategic and demographic trends in American politics appears every Wednesday. He previously covered politics for The Washington Post. @ edsall

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Amy Ettinger, who inspired readers with her life-affirming essays on dying, succumbs to cancer at 49

( JTA ) — Amy Ettinger, an author and creative writing instructor who chronicled the last months of her life in articles for the Washington Post , died March 20 from cancer at her home in Santa Cruz, California. She was 49.

Ettinger’s essays focused on the things she was able to do and cherish despite her diagnosis with a rare, incurable cancer called leiomyosarcoma : seeing a live performance of “Mamma Mia!” with her 14-year-old daughter, Julianna; eating her favorite pastry from a San Francisco bakery.

“ I’ve learned that life is all about a series of moments, and I plan to spend as much remaining time as I can savoring each one, surrounded by the beauty of nature and my family and friends,”she wrote.

Ettinger was an occasional contributor to Kveller, the Jewish family website that is a Jewish Telegraphic Agency partner. There she wrote about her mother’s kugel recipe (“light brown on its crispy top, and the color of milky coffee in the middle”) , and how she, as a “non-observant Jew,” marked Yom Kippur — which in 2013 happened to fall on her 10th wedding anniversary .

“Like Yom Kippur, a wedding anniversary is a time to take a step back from your daily life — to weigh the good and bad, to contemplate your triumphs and missteps, to make a vow to do better individually and as a couple,” she wrote.

Ettinger was born in Rochester, New York, and grew up in Cupertino, California. She discovered her calling as a journalist in high school. She majored in American literature at UC Santa Cruz and earned a master’s degree in journalism from Northwestern University in 1999.

Her writing appeared in the New York Times, the Washington Post, New York Magazine, Salon, CNN and Newsweek. In a 2021 article for AARP, she wrote how her mother’s death inspired her to learn Sheila Ettinger’s favorite game: mahjong. She taught writing classes at Stanford Continuing Studies.

In 2017, Penguin Random House published her memoir-cum-travelogue “Sweet Spot: An Ice Cream Binge Across America.” In it she wrote how she keeps “between fifteen and thirty dollars’ worth of ice cream in my freezer at all times” — not to eat, but as an “emergency backup system” in case one of her favorite shops or stores runs out.

Her follow-up story to her Washington Post article, titled “I Have Little Time Left. I Hope My Goodbye Inspires You,” appeared on the newspaper’s homepage less than two weeks before she died.

“I am choosing to focus my limited time and energy on doing the things I love with the people I care most about. It’s a formula that works, I think, no matter where you are in your life,” she wrote.

In an article written after she died , her husband, the writer Dan White, wrote that she had dictated her last essay to him from a reading room at UC Santa Cruz with a view of a redwood forest. He said she had gotten hundreds of personal responses: A handful “unwelcome, including missives from ultrareligious people wanting my proudly Jewish wife to get saved to spare herself from hellfire,” but the vast majority saying Ettinger had inspired them to make the most of their lives no matter the cards they’d been dealt.

“Amy had no way of predicting that the lines she composed on the spot would be calls to action for readers from all over the United States, as well as Canada, Poland, France and Greece,” White wrote.

Jewish Life Stories: A legendary Washington hostess and peacemaker, and an Israeli champion of civil rights

Bert Pogrebin, attorney and partner to leading feminist Letty Cottin Pogrebin, dies at 89

Maurice El Medioni, Algerian Jewish pianist revered among Jews and Muslims, dies at 95

Joseph Lieberman, centrist senator and first Jew on a major presidential ticket, dies at 82

Israeli-American Nobelist Daniel Kahneman, who reframed economic decision-making, dies at 90

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What Are Civil Liberties?

DEFINING CIVIL LIBERTIES

CIVIL LIBERTIES AND THE CONSTITUTION

EXTENDING THE BILL OF RIGHTS TO THE STATES

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Amy Ettinger, who inspired readers with her life-affirming essays on dying, succumbs to cancer at 49

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Jewish Life Stories: A legendary Washington hostess and peacemaker, and an Israeli champion of civil rights

Bert Pogrebin, attorney and partner to leading feminist Letty Cottin Pogrebin, dies at 89

Maurice El Medioni, Algerian Jewish pianist revered among Jews and Muslims, dies at 95

Joseph Lieberman, centrist senator and first Jew on a major presidential ticket, dies at 82

Israeli-American Nobelist Daniel Kahneman, who reframed economic decision-making, dies at 90

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