CHAPTER 4 – CIVIL LIBERTIES
THE BILL OF RIGHTS ORIGINATED WITH OPPONENTS OF THE CONSTITUTION:
Civil liberties are related to but different from civil rights. Civil liberties protect people
from the government. Civil rights are protections of citizen equality by the government.
The foundations of civil liberties and civil rights are to be found in the state and federal
constitutions, which guarantee freedom of speech, freedom of the press, freedom of
assembly, and so forth. The federal Constitution’s Bill of Rights includes both liberties
and rights. When the first Congress under the newly ratified Constitution met in 1789,
the most important item of business was the consideration of a proposal to add a bill of
rights to the Constitution. Such a proposal had been turned down with little debate in the
waning days of the Philadelphia Constitutional Convention in 1787 because, as the
Federalists, led by Alexander Hamilton, later argued, it was “not only unnecessary in the
proposed Constitution but would even be dangerous.” First, according to Hamilton, a bill
of rights would be irrelevant to a national government that was given only delegated
powers in the first place. To put restraints on “powers which were not granted” could
provide a pretext for governments to claim such powers: “For why declare that things
shall not be done which there is no power to do?” Second, to Hamilton and the
Federalists the Constitution as originally written amounted to a bill of rights. For
example, Article I, Section 9 included the right of habeas corpus, which prohibits the
government from depriving a person of liberty without an open trial before a judge.
Many of the framers, moreover, saw the very structure of the Constitution, including
checks and balances, as protective of citizens, liberties. Antifederalists, most of whom
had not been delegates in Philadelphia, argued that the lack of a bill of rights was a
major imperfection. The Federalists realized that to gain ratification they would have to
add a bill of rights, including a confirmation (in what would become the Tenth
Amendment) that all powers not expressly delegated to the national government or
explicitly prohibited to the states were reserved to the states. The House of
Representatives approved 17 amendments; of these, the Senate accepted 12. 10 of the
Amendments were ratified by the necessary ¾ of the states on December 15, 1791;
from the start, these 10 were called the Bill of Rights.
o THE FOURTEENTH AMENDMENT NATIONALIZED THE BILL OF RIGHTS
THROUGH INCORPORATION: The First Amendment provides that “Congress
shall make no law…” But this is the only amendment in the Bill of Rights that
addresses itself exclusively to the national government. Thus a fundamental
question inevitably arises: Do the provisions of the Bill of Rights other than the
First Amendment put limits on only the national government, or do they limit the
state governments as well? The Supreme Court first answered this question in
1833 by ruling that the Bill of Rights limited only the national government. This
meant that the actions of state governments were restricted only by their own
state constitutions as interpreted by their own courts. But the question arose
again in 1868 with the adoption of the Fourteenth Amendment, which reads: “No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” This language
sounds like an effort to extend the entire Bill of Rights to all citizens, in whatever
state they might reside. Yet this was not the Supreme Court’s interpretation for
nearly 100 years. Within 5 years of ratification of the Fourteenth Amendment, the
Court was making decisions as though the amendment had never been adopted.
In 1897, the Supreme Court did hold that the amendment’s due process clause
, prohibited states from taking property for a public use without just compensation,
a form of deprivation of property that is specifically prohibited in the Fifth
Amendment. But even though in both amendments “due process” is required for
the taking of life and liberty as well as property, only the provision protecting
property was “incorporated” into the Fourteenth Amendment as a limitation on
state power. Civil liberties did not expand through the Fourteenth Amendment
until 1925, when the Supreme Court held that freedom of speech is “among the
fundamental personal rights and ‘liberties’ protected by the due process clause of
the Fourteenth Amendment from impairment by the states.” In 1931 the court
added freedom of the press to that “fundamental” list; from then to 1939 it added
other First Amendment freedoms. Until the 1960, that was as far as the Court
was willing to go. Indeed, in the 1937 case of Palko v. Connecticut, the Court
affirmed the states’ existing power to determine their own laws on a number of
fundamental civil liberties issues. In that case, a Connecticut court had found
Palko guilty of second-degree murder and sentenced him to life in prison.
Unhappy with the verdict, Connecticut appealed it to the state’s highest court,
won the appeal, and succeeded in Palko getting convicted of first-degree murder
in a new trial. Palko appealed to the Supreme Court on what seemed an open-
and-shut case of double jeopardy, which is prohibited by the Fifth Amendment.
The majority of the Court, however, decided that protection against double
jeopardy was not one of the provisions of the Bill of Rights incorporated into the
Fourteenth Amendment as a restriction on the powers of the states. Not until
more than 30 years later did the Court reverse this ruling. Palko was eventually
executed for the crime. The Palko case established the principle of selective
incorporation, by which each provision of the Bill of Rights was to be considered
separately as a possible limit on the states through the Fourteenth Amendment.
Today, only the Third and Seventh Amendments remain unincorporated, though it
should be noted that almost every state voluntarily complies with the Seventh
Amendment’s requirement of jury trials.
THE FIRST AMENDMENT GUARANTEES FREEDOM OF RELIGION: The Bill of
Rights begins by guaranteeing freedom of religion, and the First Amendment provides
for that freedom in two distinct clauses: “Congress shall make no law [1] respecting an
establishment of religion, or [2] prohibiting the free exercise thereof.” The first clause is
called the “establishment clause,” and the second is called the “free exercise clause.”
o SEPARATION BETWEEN CHURCH AND STATE: The establishment clause and
the idea of “no law” regarding the establishment of religion could be interpreted in
several ways. One interpretation is simply that the national government is
prohibited from establishing an official church. Official “established” churches,
such as the Church of England, were common in Europe in the 18th century as
well as in some of the 13 colonies and were viewed by many Americans as
inconsistent with a republican form of government. Indeed, many American
colonists had fled Europe to escape persecution for having rejected established
churches. A second possible interpretation is that the government may provide
assistance to religious institutions or ideas as long as it does not take sides or
show favoritism among them. The United States accommodates religious beliefs
in a variety of ways, form the reference to God on currency to the prayer that
begins every session of Congress. These forms of religious establishment have
always been upheld by the courts. The third view regarding religious
establishment, the most commonly held today, favors a “wall of separation” –
Jefferson’s formulation – between church and state. For two centuries,
Jefferson’s words have powerfully influenced Americans’ understanding of the
THE BILL OF RIGHTS ORIGINATED WITH OPPONENTS OF THE CONSTITUTION:
Civil liberties are related to but different from civil rights. Civil liberties protect people
from the government. Civil rights are protections of citizen equality by the government.
The foundations of civil liberties and civil rights are to be found in the state and federal
constitutions, which guarantee freedom of speech, freedom of the press, freedom of
assembly, and so forth. The federal Constitution’s Bill of Rights includes both liberties
and rights. When the first Congress under the newly ratified Constitution met in 1789,
the most important item of business was the consideration of a proposal to add a bill of
rights to the Constitution. Such a proposal had been turned down with little debate in the
waning days of the Philadelphia Constitutional Convention in 1787 because, as the
Federalists, led by Alexander Hamilton, later argued, it was “not only unnecessary in the
proposed Constitution but would even be dangerous.” First, according to Hamilton, a bill
of rights would be irrelevant to a national government that was given only delegated
powers in the first place. To put restraints on “powers which were not granted” could
provide a pretext for governments to claim such powers: “For why declare that things
shall not be done which there is no power to do?” Second, to Hamilton and the
Federalists the Constitution as originally written amounted to a bill of rights. For
example, Article I, Section 9 included the right of habeas corpus, which prohibits the
government from depriving a person of liberty without an open trial before a judge.
Many of the framers, moreover, saw the very structure of the Constitution, including
checks and balances, as protective of citizens, liberties. Antifederalists, most of whom
had not been delegates in Philadelphia, argued that the lack of a bill of rights was a
major imperfection. The Federalists realized that to gain ratification they would have to
add a bill of rights, including a confirmation (in what would become the Tenth
Amendment) that all powers not expressly delegated to the national government or
explicitly prohibited to the states were reserved to the states. The House of
Representatives approved 17 amendments; of these, the Senate accepted 12. 10 of the
Amendments were ratified by the necessary ¾ of the states on December 15, 1791;
from the start, these 10 were called the Bill of Rights.
o THE FOURTEENTH AMENDMENT NATIONALIZED THE BILL OF RIGHTS
THROUGH INCORPORATION: The First Amendment provides that “Congress
shall make no law…” But this is the only amendment in the Bill of Rights that
addresses itself exclusively to the national government. Thus a fundamental
question inevitably arises: Do the provisions of the Bill of Rights other than the
First Amendment put limits on only the national government, or do they limit the
state governments as well? The Supreme Court first answered this question in
1833 by ruling that the Bill of Rights limited only the national government. This
meant that the actions of state governments were restricted only by their own
state constitutions as interpreted by their own courts. But the question arose
again in 1868 with the adoption of the Fourteenth Amendment, which reads: “No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” This language
sounds like an effort to extend the entire Bill of Rights to all citizens, in whatever
state they might reside. Yet this was not the Supreme Court’s interpretation for
nearly 100 years. Within 5 years of ratification of the Fourteenth Amendment, the
Court was making decisions as though the amendment had never been adopted.
In 1897, the Supreme Court did hold that the amendment’s due process clause
, prohibited states from taking property for a public use without just compensation,
a form of deprivation of property that is specifically prohibited in the Fifth
Amendment. But even though in both amendments “due process” is required for
the taking of life and liberty as well as property, only the provision protecting
property was “incorporated” into the Fourteenth Amendment as a limitation on
state power. Civil liberties did not expand through the Fourteenth Amendment
until 1925, when the Supreme Court held that freedom of speech is “among the
fundamental personal rights and ‘liberties’ protected by the due process clause of
the Fourteenth Amendment from impairment by the states.” In 1931 the court
added freedom of the press to that “fundamental” list; from then to 1939 it added
other First Amendment freedoms. Until the 1960, that was as far as the Court
was willing to go. Indeed, in the 1937 case of Palko v. Connecticut, the Court
affirmed the states’ existing power to determine their own laws on a number of
fundamental civil liberties issues. In that case, a Connecticut court had found
Palko guilty of second-degree murder and sentenced him to life in prison.
Unhappy with the verdict, Connecticut appealed it to the state’s highest court,
won the appeal, and succeeded in Palko getting convicted of first-degree murder
in a new trial. Palko appealed to the Supreme Court on what seemed an open-
and-shut case of double jeopardy, which is prohibited by the Fifth Amendment.
The majority of the Court, however, decided that protection against double
jeopardy was not one of the provisions of the Bill of Rights incorporated into the
Fourteenth Amendment as a restriction on the powers of the states. Not until
more than 30 years later did the Court reverse this ruling. Palko was eventually
executed for the crime. The Palko case established the principle of selective
incorporation, by which each provision of the Bill of Rights was to be considered
separately as a possible limit on the states through the Fourteenth Amendment.
Today, only the Third and Seventh Amendments remain unincorporated, though it
should be noted that almost every state voluntarily complies with the Seventh
Amendment’s requirement of jury trials.
THE FIRST AMENDMENT GUARANTEES FREEDOM OF RELIGION: The Bill of
Rights begins by guaranteeing freedom of religion, and the First Amendment provides
for that freedom in two distinct clauses: “Congress shall make no law [1] respecting an
establishment of religion, or [2] prohibiting the free exercise thereof.” The first clause is
called the “establishment clause,” and the second is called the “free exercise clause.”
o SEPARATION BETWEEN CHURCH AND STATE: The establishment clause and
the idea of “no law” regarding the establishment of religion could be interpreted in
several ways. One interpretation is simply that the national government is
prohibited from establishing an official church. Official “established” churches,
such as the Church of England, were common in Europe in the 18th century as
well as in some of the 13 colonies and were viewed by many Americans as
inconsistent with a republican form of government. Indeed, many American
colonists had fled Europe to escape persecution for having rejected established
churches. A second possible interpretation is that the government may provide
assistance to religious institutions or ideas as long as it does not take sides or
show favoritism among them. The United States accommodates religious beliefs
in a variety of ways, form the reference to God on currency to the prayer that
begins every session of Congress. These forms of religious establishment have
always been upheld by the courts. The third view regarding religious
establishment, the most commonly held today, favors a “wall of separation” –
Jefferson’s formulation – between church and state. For two centuries,
Jefferson’s words have powerfully influenced Americans’ understanding of the
