Civil Rights and Civil Liberties
Civil Rights and Civil Liberties, political and social concepts referring to guarantees of freedom, justice, and equality that a state may make to its citizens. Although the terms have no precise meaning in law and are sometimes used interchangeably, distinctions may be made. Civil rights is used to imply that the state has a positive role in ensuring all citizens equal protection under law and equal opportunity to exercise the privileges of citizenship and otherwise to participate fully in national life, regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. Civil liberties is used to refer to guarantees of freedom of speech, press, or religion; due process of law; and other limitations on the power of the state to restrain or dictate the actions of individuals. The two concepts of equality and liberty are overlapping and interacting; equality implies the ordering of liberty within society so that the freedom of one person does not infringe on the rights of others.
The concept that human beings have inalienable rights and liberties that cannot justly be violated by others or by the state is linked to the history of democracy. It was first expressed by the philosophers of ancient Greece. Socrates, for example, chose to die rather than renounce the right to speak his mind in the search for wisdom. Somewhat later the Stoic philosophers formulated explicitly the doctrine of the rights of the individual (see Stoicism). Traces of libertarian doctrine appear in the Bible and in the writings of the Roman statesman Marcus Cicero and the Greek essayist Plutarch. Such ideas, however, did not gain a permanent place in the political structure of the Roman Empire and all but disappeared during medieval times.
A Early Development
Individual freedom can survive only under a system of law by which both the sovereign and the governed are bound. Such a system of fundamental laws, whether written or embodied in tradition, is known as a constitution. The idea of government limited by law received effective expression for the first time in the Magna Carta (1215), which checked the power of the English king. The Magna Carta did not stem from democratic or egalitarian beliefs; rather, it was a treaty between king and nobility that defined their relationship and laid the basis for the concept that the ruler was subject to the law rather than above it. The development of constitutional government was slowed by the persistence of the ideas of absolutism, the belief that all political power should be in the hands of one individual, and divine right, which held that kings derived their power from—and were only accountable to—God. The reigns of the Tudor and Stuart monarchs in England were marked by fierce conflicts between the Crown and Parliament.
On the European continent the struggle between authoritarian and libertarian principles developed around religious rather than secular issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare; as late as 1612, for instance, members of the Unitarian sect were burned as heretics in England (see Unitarianism). Not until the end of the 18th century did the ideals of religious toleration become firmly established in Western civilization.
As a result of the English, American, and French revolutions, libertarian ideals were embodied in the structure of national governments. In England, the struggle between Parliament and the absolutist Stuart monarchs culminated in the so-called Glorious Revolution of 1688. King James II was expelled, and the new king, William III, gave royal assent (1689) to the Declaration of Rights, which guaranteed constitutional government. Subsequently, the monarch’s prerogatives were limited by statute and custom. The constitutional system is described in the writings of the English philosopher John Locke, which profoundly influenced the leaders of the American colonies.
The 17th century was marked also by the growth of individual freedom in Great Britain. In the common law courts, for example, the judges became more concerned for the rights of those accused of crime, and procedural safeguards were established.
B Spread of Civil Liberties
British colonists brought the concepts of limited government and individual freedom to the New World. The early laws of Virginia, Massachusetts, and other colonies reflected interest in the reform of criminal procedure that was emerging in Great Britain. A notable event in the history of civil liberties was the successful defense (1735) in New York by the colonial lawyer Andrew Hamilton of the printer and publisher John Peter Zenger, who had been charged with seditious libel for criticizing the colonial government in his publication the New York Weekly Journal. See The Trial of John Peter Zenger
The events leading to the American and French revolutions inspired writings that laid the foundations for modern ideas of civil liberties by such authors as the French philosophers Voltaire and Jean Jacques Rousseau, the British reformer John Wilkes and the philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesman Thomas Jefferson. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights of the U.S. Constitution formally established libertarian principles as a foundation of modern democracy.
Although civil liberties are often considered an integral part of democratic government, the principles of limited government and personal freedom were developed in England at a time when political power was held by an aristocratic upper class. Similarly, in the American colonies, many founding fathers did not favor democracy in the modern sense. Conversely, history offers numerous examples of countries in which political power is formally vested in representative assemblies, but enforcement of law is arbitrary or despotic, and minorities have few safeguards against the tyranny of majorities.
III CIVIL RIGHTS IN THE UNITED STATES
The civil rights and liberties of U.S. citizens are embodied in the Bill of Rights, the first ten amendments to the Constitution. The 1st Amendment guarantees freedom of speech, press, assembly, and religious exercise as well as separation of church and state (see Speech, Freedom of; Press, Freedom of the; Freedom of Religion). The 4th Amendment protects the privacy and security of the home and personal effects and prohibits unreasonable searches and seizures. The 5th through 8th amendments protect persons accused of crime; they guarantee, for example, the right to trial by jury, the right to confront hostile witnesses and to have legal counsel, and the privilege of not testifying against oneself. The 5th Amendment also contains the general guarantee that no one shall be deprived of life, liberty, or property without due process of law (see Due Process of Law). Originally these amendments were binding only on the federal government. However, decisions by the Supreme Court of the United States have established that the Due Process Clause of the 14th Amendment (ratified in 1868) applies many of the guarantees in the Bill of Rights to actions by state and local governments.
A Religious Freedom
Although religious freedom has not generally been curtailed in the U.S., Roman Catholics, Jews, and members of such unconventional Protestant groups as the Oneida Community and the Mormon sect have sometimes been persecuted. With the exception of sporadic acts against groups such as the Church of Scientology and the Unification Church, religious discrimination has diminished.
The federal Civil Rights Act of 1964, as well as many state and local laws, prohibits religious discrimination. The government recognizes the right of religious pacifists to refuse to bear arms, even in time of war. The Supreme Court has ruled that this right, known as conscientious objection, need not be based only on religious training or belief in a supreme being. The Court has also upheld the right of Jehovah’s Witnesses to refuse to salute the flag. Applying the principle of separation of church and state (see Church and State), the Court has struck down attempts to use public funds to finance religious schools; at times, however, the Court has permitted the use of public funds for buildings and other nonsectarian programs of religious schools. In the 1960s the Court ruled that state-composed prayers and Bible reading in public schools violated the Constitution. Efforts to reverse these rulings were unsuccessful, but in recent years the Court has been less vigilant in scrutinizing government aid to religion; for example, it has upheld a community’s right to place religious displays on public property.
B Freedom of Speech, Press, and Assembly
Civil liberties have been most endangered during periods of national emergency. In 1798 hostility toward revolutionary France led Congress to enact the Alien and Sedition Acts, which stripped aliens of nearly all civil rights and threatened freedom of speech and the press by prohibiting “false, scandalous and malicious writing” against the government, Congress, or the president. The constitutionality of these acts was never tested, but they were not reenacted and are now generally agreed to have been unconstitutional.
During the American Civil War, President Abraham Lincoln gave his principal military officers wide and unreviewed authority to arrest civilians for disloyal speech or acts. After World War I, fear of the newly established Communist government in the Soviet Union led to the harassment of suspected subversives by the U.S. Department of Justice.
The rise of National Socialism in Germany, the spread of communism, and the Great Depression of the 1930s all combined to arouse concern for the internal security of the U.S. The federal legislative and executive powers to deal with disloyal acts was enlarged. In 1940 Congress passed the Smith Act, which outlawed the advocacy of force and violence as a means of bringing about changes in government. In 1950 Congress adopted the Internal Security Act, which established a new federal agency for identifying and suppressing so-called subversive persons and organizations. Congress virtually outlawed the Communist Party in 1954, although membership in the party was not expressly made criminal. These statutes were upheld by the Supreme Court, but eventually were limited in scope and fell into disuse during the 1960s. In 1969 the Court adopted a constitutional standard that protected political speech unless it was “directed to inciting … imminent lawless action” and was likely to produce such action.
In the 1950s congressional and state investigating committees conducted widely publicized hearings at which thousands of individuals were questioned concerning their political activities and associations, if any, with the Communist Party. Among the legislators prominently identified with these investigations were Senators Patrick McCarran of Nevada and Joseph McCarthy of Wisconsin. The Supreme Court subsequently limited such proceedings.
New problems emerged during the 1960s and ’70s. Demonstrations by opponents of racial discrimination and the Vietnam War, and government attempts to restrict these demonstrations, led the Supreme Court to specify where, when, and how streets, parks, and other public places could be used for purposes of protest. At the same time, certain symbolic forms of expression were employed by the protesters, leading to court rulings upholding criminal punishment for the burning of draft cards but reversing convictions for the mutilation of the American flag as a form of expression. The Court held in 1989 and 1990 that neither the federal government nor the states could single out the burning of the American flag for criminal penalties.
The attempted publication by the New York Times, the Washington Post, and other newspapers of the so-called Pentagon Papers led to a major Supreme Court decision that prior restraints on publication of national security material could not be enjoined unless such material “will surely result in direct, immediate and irreparable damage to our nation or its people.” (see Censorship)
In 1964 the Supreme Court ruled for the first time that libelous statements about public officials were protected by the 1st Amendment unless uttered with “actual malice”; that is, with knowledge of their falsehood or with reckless disregard of the facts. Later cases refined this decision but left to the discretion of the states whether to allow defamation actions brought by persons who are neither public officials nor public figures.
The Supreme Court also elaborated its 1957 ruling that obscenity is not constitutionally protected speech. Determining the content of obscenity has been difficult; in 1973 it was defined as speech that, taken as a whole, appeals to the prurient interest, is patently offensive in depicting sexual conduct, and lacks serious literary, political, or scientific value. This vague definition has led to numerous lawsuits involving explicit sexual material. Conservative religious groups and some feminists have attempted to restrict the distribution of pornographic material that is not obscene. The movement achieved limited success, but civil libertarians have led efforts to combat this form of censorship.
One of the most controversial First Amendment cases of the late 1970s did not reach the Supreme Court. When a U.S. Nazi group sought to march in Skokie, Illinois, the home of many Jewish survivors of German concentration camps, emotions were aroused, and the city enacted laws designed to prevent the march. Both federal and state courts upheld the right of this Nazi group, which was represented by the American Civil Liberties Union, to express itself peaceably.
C Criminal Trials and Due Process of Law
A number of Supreme Court rulings have been concerned with the rights of persons accused of crimes. Defendants in state as well as federal criminal cases are assured that they cannot be imprisoned for an offense unless represented by a lawyer, or counsel; if a defendant is impoverished, such counsel must be supplied by the government. Defendants must be warned that they may not be questioned until counsel is provided, and defendants may not be convicted on the basis of confessions obtained by coercion. The Court also ruled that prosecutors may not exclude people from juries on racial or sexual grounds.
The 5th Amendment privilege against self-incrimination was the most controversial constitutional protection during the 1950s and 1960s, when it was invoked by, among others, individuals accused of subversive activities and participation in organized crime. The Court’s interpretation of the Fourth Amendment has also generated controversy; its provisions protecting the security of the person and of dwellings have been cited in disallowing convictions based on evidence obtained by the police illegally. The Court in the 1970s began to narrow its interpretation, a process that has continued into the 1990s as the public has come to favor crime-control measures over the rights of defendants. This climate of opinion has also led to more frequent use of capital punishment and to limitations on the right of prisoners to appeal their convictions on constitutional grounds.
A constitutional right of privacy, drawn from the Bill of Rights provisions protecting the security of home and person, as well as freedom of association, was first recognized by the Supreme Court in 1965. In Griswold v. Connecticut the Court struck down a state law that prohibited the use of contraceptives by a married couple. The decision was later extended to protect the rights of single persons and, in the Roe v. Wade decision of 1973, the right of women to abort an unwanted pregnancy. In 1980, however, the Court refused to apply this ruling to require the federal government to bear the cost of abortions for women who could not afford them. Efforts to reverse Roe v. Wade judicially or by constitutional amendment were unsuccessful. The amendment did not acquire the necessary support, and a divided Supreme Court in 1992 reaffirmed the core holding of Roe while further limiting its scope.
Other test cases of rights of privacy during this period concerned wiretapping and eavesdropping on private conversations, widespread dissemination of personal information through computers, access to information in government files, and the use without consent of pictures and names of celebrities. Although the courts have given some protection to privacy, the results have been relatively minor. For example, the Supreme Court ruled in 2000 that Congress could prohibit states from selling personal information on state drivers’ licenses and motor-vehicle registration records. Additional protection has resulted from legislative enactments such as the federal Privacy Act of 1974 and various state statutes.
E Minority Rights
The most critical civil rights issue in the U.S. has concerned the status of its black minority. After the Civil War the former slaves’ status as free people entitled to the rights of citizenship was established by the 13th and 14th Amendments, ratified in 1865 and 1868, respectively. The 15th Amendment, ratified in 1870, prohibited race, color, or previous condition of servitude as grounds for denying or abridging the rights of citizens to vote. In addition to these constitutional provisions, statutes were passed defining civil rights more particularly. The Supreme Court, however, held several of these unconstitutional, including an 1875 act prohibiting racial discrimination by innkeepers, public transportation providers, and places of amusement.
During the period of Reconstruction the Republican-dominated federal government maintained troops in the southern states. Blacks voted and held political offices, including seats in Congress. Two blacks became senators, and 20 were elected to the House of Representatives during this era. The Reconstruction era aroused the bitter opposition of most southern whites. The period came to an end in 1877, when a political compromise between the Republican Party and southern leaders of the Democratic Party led to the withdrawal of federal troops from the South.
In the last two decades of the 19th century, blacks were disfranchised and stripped of other rights in the South through discriminatory legislation and unlawful violence. Separate facilities for whites and blacks became a basic rule in southern society. In Plessy v. Ferguson, an 1896 case involving the segregation of railroad passengers, the Supreme Court held that “separate but equal” public facilities did not violate the Constitution.
During the first half of the 20th century, racial exclusion, either overt or covert, was practiced in most areas of U.S. life. During World War II black leaders such as A. Philip Randolph protested segregation in military service, and some reforms were introduced. In 1948 President Harry S. Truman signed an executive order integrating the armed forces. The 1954 Supreme Court decision in Brown v. Board of Education represented a turning point; reversing the 1896 “separate but equal” ruling, the Court held that compulsory segregation in public schools denies black children equal protection under the law. It later directed that desegregated educational facilities be furnished “with all deliberate speed.” Subsequent decisions outlawed racial exclusion or discrimination in all government facilities and facilities involved in interstate commerce, such as public transportation. A state law against racial intermarriage was also ruled invalid (see Miscegenation).
School desegregation was resisted in the South. Federal determination to enforce the court decision was demonstrated in Little Rock, Arkansas, in 1957, when President Dwight Eisenhower dispatched troops to secure admission of black students into a “white” high school. Nevertheless, in the Deep South progress toward integration was negligible in the years following the Supreme Court decision. In 1966, for example, the overwhelming majority of southern schools remained segregated. By 1974, however, some 44 percent of black students in the South attended integrated schools, and by the early 1980s the number was approximately 80 percent.
In the North and West many black students also attended segregated schools. Such segregation was considered unconstitutional only where it could be proven to have originated in unlawful state action. Public controversy, sometimes violent, continued over the issue of transporting children in school buses long distances from their homes in order to achieve integration. Busing had become necessary because of the concentration of minority populations in the central areas of many cities. The Supreme Court dealt a blow to such busing in July 1974 by, in effect, barring it across school-district lines except on a voluntary basis.
Civil rights for blacks became a major national political issue in the 1950s. The first federal civil rights law since the Reconstruction period was enacted in 1957. It called for the establishment of a U.S. Commission on Civil Rights and authorized the U.S. attorney general to enforce voting rights. In 1960 this legislation was strengthened, and in 1964 a more sweeping civil rights bill outlawed racial discrimination in public accommodations and by employers, unions, and voting registrars. Deciding that normal judicial procedures were too slow in assuring minority registration and voting, Congress passed a voting rights bill in 1965. The law suspended (and amendments later banned) use of literacy or other voter-qualification tests that had sometimes served to keep blacks off voting lists, authorized appointment of federal voting examiners in areas not meeting certain voter-participation requirements, and provided for federal court suits to bar discriminatory poll taxes, which were ended by a Supreme Court decision and the 24th Amendment (ratified in 1964). In the aftermath of the assassination of the civil rights leader Martin Luther King, Jr., Congress in 1968 prohibited racial discrimination in federally financed housing, but later efforts to strengthen the law failed.
An important constitutional issue that has caused public controversy is whether, and to what degree, public and private institutions may use “affirmative action” or “reverse discrimination” to help members of minority groups obtain better employment or schooling. In the 1978 Bakke case, the Supreme Court held that it was unconstitutional for the University of California Medical School at Davis to set an absolute quota for the admission of minority candidates, but the Court approved a Harvard University plan that took race into account for the setting of numerical goals that were not disguised quotas. The Court later ruled that racial preferences by a private corporation designed to remedy prior discrimination did not violate the Civil Rights Act, and it upheld a federal statute that requires a certain percentage of government contracts to be given to minority-owned businesses.
Impressive gains have been made by blacks in education, employment, and to a lesser degree in housing. Nevertheless, historic patterns of hiring and promotion leave nonwhite minorities economically vulnerable, especially in a weak national economy. President Ronald Reagan’s administration slowed down enforcement of certain civil rights laws and opposed government-enforced quotas and “goals and timetables.” The courts have sometimes held inconsistent positions on these complex issues. In 1986, however, the Supreme Court supported the limited use of affirmative action to help minority groups compensate for past job discrimination; in 1987 the Court upheld the right of employers to extend preferential treatment to minorities and women in order to achieve a better balanced workforce. In several close rulings in 1989, however, the Court’s conservative majority moved toward reversing this direction by making it even more difficult for women and minorities to use the courts to remedy discrimination in hiring practices or on the job. In response, Congress passed the Civil Rights Act of 1991, which strengthened affirmative action.
Civil rights have also been denied to Hispanic Americans, particularly Puerto Ricans in the East and Mexican Americans in the Southwest. The problem has followed traditional paths, as rights have been denied in employment, housing, and access to the judicial system.
Asian Americans also have suffered deprivations of civil rights since at least the late 19th century. The forced removal and incarceration of persons of Japanese descent from the West Coast during World War II (1939-1945), which was upheld by the Supreme Court, was a major violation of civil liberties for which Congress apologized and provided reparations in 1990. Asians faced low immigration quotas before the laws were amended in 1965, 1968, and 1977, and in parts of the United States, Asian Americans have been denied equal rights in housing and employment.
F Rights of Women
Historically, American women have been denied their civil rights in suffrage (they were unable to vote until a 1920 constitutional amendment), employment, and other areas. In the 1960s women organized to demand legal equality with men and, after passage of the Civil Rights Act of 1964, made many gains, especially in employment. During the 1970s efforts continued to change not only unfair practices but also outmoded attitudes toward the role of women in society. In 1972 Congress passed the Equal Rights Amendment (ERA) to the Constitution and submitted it to the states for ratification. The ERA, however, which was designed to eliminate legal discrimination against women, failed to win the approval of a sufficient number of states; by the June 1982 deadline only 35 of the required 38 states had ratified the amendment. Women have continued to make gains in certain trades and professions, including financial services, medicine, and law, but problems remain in many areas. The Civil Rights Act of 1991 extended to women victims of job bias the right to sue their employers for monetary damages. The act also established a commission to probe the “glass ceiling” that has prevented women and other minorities from advancing to top management. See Women’s Rights.
G Rights of Other Minorities
The struggle for civil rights has not been confined to blacks, Hispanic Americans, Asian Americans, and women. Native Americans for decades were forcibly deprived of their lands and denied civil rights. In 1968 Congress enacted the Indian Civil Rights Act, and the federal courts have heard a number of suits designed to restore to Native American tribes rights to their ancestral lands.
The elderly have also been deprived of their civil rights, especially in employment and to some degree in housing. Federal and state laws have been only partially successful in solving this problem. Former prisoners and mental patients have suffered legal disabilities after their confinement ended, and resident aliens are sometimes denied equal employment opportunities.
Homosexuals, historically, have not had full civil rights because of social and sexual taboos. The number of judicial decisions and laws enacted at the local level to protect gay men and women from discrimination has increased, but the degree of prejudice was heightened in the 1980s by the concern about acquired immunodeficiency syndrome (AIDS). In 1986 the Supreme Court ruled that the Constitution does not bar criminal prosecution for private homosexual relations between consenting adults. Several local governments acted to curtail the rights of lesbians and gay men. By the early 1990s the gay community had organized more effectively than ever before in the effort to assert their rights. In 1996 the Supreme Court ruled that state and local governments cannot deny basic civil rights protections to homosexuals. However, in 1998 the Court refused to hear a challenge to a citizens’ initiative that forbade the city of Cincinnati, Ohio, from passing laws to protect gay people from discrimination.
H International Concerns
To establish the principles of civil liberties and civil rights on an international basis, the United Nations Charter was drawn up after World War II; it states that one of the purposes of the UN is to promote and encourage respect for “human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” In 1946 a UN Commission on Human Rights was established. In 1948 the General Assembly adopted a Universal Declaration of Human Rights prepared by the commission and embodying the 18th-century ideals of liberty, equality, and fraternity. This declaration, however, is not binding on member states.
Almost all nations deny civil rights to disfavored minorities within their borders. A major obstacle to international protection of human rights is the opposition of most countries to interference with their internal affairs, including questions of the rights of their own citizens. To some degree this difficulty has been overcome through regional arrangements and implementing bodies such as the European Commission on Human Rights and the Inter-American Commission on Human Rights. The administration of President Jimmy Carter in the late 1970s introduced human rights as an element of foreign policy. This initiative was unevenly pressed and sometimes ineffectual, but it increased international awareness of the gravity of the problem of securing human rights for all people. The Reagan administration took a less aggressive stance on human rights violations, claiming that quiet diplomacy was more effective than public threats. During the administrations of presidents Bush and Clinton, human rights issues have become increasingly intertwined with international trade and commercial treaties. Controversy had surrounded the granting of most-favored-nation status to countries alleged to have violated human rights, such as China. Most-favored-nation status guarantees that a country will receive the same terms offered to other trade partners in commercial treaties.
Jethro K. Lieberman
Microsoft ® Encarta ® Encyclopedia 2003. © 1993-2002 Microsoft
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