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Chapter Five: Civil Liberties
Issues of civil liberties are among the most divisive and controversial in contemporary American politics. However, the inherent tension between majority rule and individual liberties is nothing new, and in fact it weighed heavily on the minds of the Framers as they wrote the Constitution. Although the Constitution included no formal listing of citizens' rights in its original form, its supporters and opponents alike soon recognized the value of including explicit limitations on government power. However, even when the Bill of Rights was added to the Constitution, it was not applied to state governments or policies.
The passage of the Fourteenth Amendment during Reconstruction provided the legal basis for incorporating the Bill of Rights into state policy. The actual process of incorporation has been selective and is still ongoing today. Some amendments, particularly the freedom of expression components of the First Amendment, were applied to the states relatively early and vigorously. Others, such as the Second Amendment, still have not been applied to the states.
The Supreme Court has been the primary actor in controlling the incorporation process as well as safeguarding and balancing civil liberties, in general. While the unelected nature of the Court has insulated the body from popular passions in the short term, the Court has seldom flouted majority opinion in the long term.
After reading this chapter, you should understand…
- the national government's changing role in governing civil liberties and the driving forces behind these changes
- the rationale behind including the Bill of Rights in the Constitution and why some Framers argued that such inclusion was unnecessary
- how the apparently clear language of the Bill of Rights is actually subject to varying interpretations
- the Court's varying protection of speech, especially in times of war
- the difficulties the Court faces in regulating obscenity
- how the free exercise and establishment clauses of the First Amendment can come into conflict
- what political abuses the Framers feared from the criminal justice system
- how and why the Court has followed a meandering path in criminal rights
- the source and limits of a constitutional right to privacy
- the implications of civil liberties as public policy
- Through what individual steps did the Constitution acquire civil liberties protections?
- How has individual liberty been elevated from a private local matter into a prominent national policy issue?
- How has the role of national government differed in the development of civil rights policy versus that of civil liberties?
- How did the Bill of Rights come to apply to states?
- Which parts of the Bill of Rights currently apply to states?
- Why do governments tend to restrict speech and other liberties more in wartime than in peacetime? How have these restrictions varied over time?
- How has the Internet changed the way obscenity is regulated?
- Why do politicians face such a high burden of proof in libel cases against the press?
- When does the Court allow "prior restraint" of the news?
- What is the Court's current position on prayer in school? Is this position supported by the public? How is it enforced?
- What is the Court's current stance on capital punishment? What have been some past Court objections to executions, and how have states attempted to address these issues? How do executions vary by state and region?
- How supportive has the public been about the incorporation of criminal rights into the Fourteenth Amendment? How has the level of incorporation altered with changes in the Court's membership?
- What rights do citizens have against police searches and seizures of their property? How broad are these rights?
- What is the constitutional basis for the right to privacy? Does privacy receive as much protection as do other rights?
- Who is granted the right to "bear arms" by the Second Amendment? Has the Court's answer to this question changed over time?
- Do the states still have a role in defining civil liberties?
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