Perspective on Civil Liberties

Many people confuse the terms civil liberties and civil rights and use them interchangeably, even though their definitions differ. Civil liberties are individual freedoms and rights guaranteed to every citizen by the Bill of Rights and the due process clause of the Fourteenth Amendment. These rights include freedom of religion, speech, and the press and the considerations given to defendants accused of crimes. In recent years, such rights as privacy, abortion, and even death itself have come under the heading of civil liberties. Civil rights, on the other hand, deal with the protection of citizens against discrimination due to race, ethnicity, gender, or disability. These protections come from the constitutional amendments following the Bill of Rights.

An easy way to distinguish civil liberties from civil rights is to understand civil liberties as the protection of the individual from government interference. Conversely, civil rights are what people expect the government to provide to every individual, including such rights as the vote, equality in job opportunities, and equal access to housing and education. The distinction between actual civil liberties and civil rights, however, is not always so clear-cut, and many issues involve both.

Our present understanding of civil liberties developed over time. The extent of the protection offered by the Bill of Rights and the Fourteenth Amendment has depended largely on the interpretations of the Supreme Court.

The Bill of Rights

For a century, the Bill of Rights was interpreted narrowly as protection against the abuses of the federal government. The Founding Fathers had the American Revolution fresh in their minds when the Bill of Rights was issued, which is why the Third Amendment, prohibiting the quartering of soldiers in homes, a non-issue today, was of great importance to them.

In the early years of the republic, the Sedition Act (1798) made it a crime to publish or say anything "false, scandalous, and malicious" against the government or its officials. The Federalists used the law to jail Republican opponents of the administration of John Adams. Today, such laws would be clearly unconstitutional, but at the time the Supreme Court was filled with unsympathetic Federalists.

Moreover, the Bill of Rights did nothing to protect citizens from abuses at the state level. While the constitutions of most states had their own Bill of Rights, enforcement of the protections varied widely.

The impact of the Fourteenth Amendment

The Fourteenth Amendment (1868) extended civil liberty protections to individuals in the states. The Supreme Court first took a limited interpretation of the amendment. The Court said that states could not take away fundamental rights without following "due process" — which the Court read as meaning simply that the states were required to follow fair procedures before, for example, incarcerating someone. Very early on, however, nationalist judges began pushing to interpret the Fourteenth Amendment as a vehicle for applying the Bill of Rights to the states. They never did win a policy of total incorporation, in which the first eight constitutional amendments were applied to the states in their entirety. But in 1937, the court began a formal process of selective incorporation through which most of the liberties contained in the Bill of Rights were declared "fundamental freedoms" applicable through the Fourteenth Amendment.

Several Bill of Rights amendments have not been applied to the states, however. The Second Amendment on the right to bear arms remains a subject of ongoing disagreement as to its meaning. The Third Amendment is obsolete. The Seventh Amendment guarantees of trial by jury in civil cases are paralleled in state laws, as is the Eighth Amendment on excessive bail and cruel and unusual punishment. The net effect of selective incorporation nonetheless has been to greatly expand the power of the federal government in protecting the civil liberties of individuals.