Civil Liberties

• Author: Norman Dorsen
• Pages: 373-380

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WILLIAM BLACKSTONE described civil liberty as "the great end of all human society and government ? that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws." As a matter of law, civil liberties are usually claims of right that a citizen may assert against the state. In the United States the term "civil liberties" is often used in a narrower sense to refer to RELIGIOUS LIBERTY, personal privacy, and the right to DUE PROCESS OF LAW, or to other limitations on the power of the state to restrict individual freedom of action. In this sense, civil liberties may be distinguished from rights to equality (sometimes called "civil rights"), although the latter have increasingly been recognized as important elements of individual freedom because they permit participation in society without regard to race, religion, sex, or other characteristics unrelated to individual capacity.

The concept of civil liberties is a logical corollary to the ideas of LIMITED GOVERNMENT and RULE OF LAW. When government acts arbitrarily, it infringes civil liberty; the rule of law combats and confines these excesses of power. The concept "government of laws, not of men" reflects this idea as does the vision of justice as fairness.

Although civil liberties are usually associated in practice with democratic forms of government, liberty and democracy are distinct concepts. An authoritarian government structure may recognize certain limits on the capacity of the state to interfere with the autonomy of the individual. Correspondingly, calling a state democratic does not tell us about the extent to which it recognizes civil liberty. Thus, "civil liberties" does not refer to a particular form of political structure but to the relationship between the individual and the state, however the state may be organized. But civil liberties do presuppose order. As Chief Justice CHARLES EVANS HUGHES said in COX V. NEW HAMPSHIRE (1941), "Civil liberties imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses."

In the final analysis, civil liberties are based on the integrity and dignity of the individual. This idea was expressed by George C. Marshall, who was chief of staff to the American army in WORLD WAR II and later served as secretary of state: "We believe that human beings have ? rights that may not be given or taken away. They include the right of every individual to develop his mind and his soul in the ways of his own choice, free of fear and coercion?provided only that he does not interfere with the rights of others."

There are two principal justifications for preferring individual liberties to the interests of the general community?justice and self-interest. At the very least, justice requires norms by which persons in authority treat those within their power fairly and evenly. Self-interest suggests that our own rights are secure only if the rights of others are protected.

Because these two justifications for civil liberties are abstractions to most people, they are often subordinated to more immediate concerns of the state or the majority. In America, even administrations relatively friendly to civil liberty have perpetrated some of the worst violations. The administration of FRANKLIN D. ROOSEVELT interned Japanese Americans during World War II. ABRAHAM LINCOLN suspended the right of HABEAS CORPUS. And as Leonard W. Levy has reminded us, THOMAS JEFFERSON was far more of a libertarian as a private citizen than when he was in power. Nevertheless, civil liberties have been more broadly defined and fully respected in the United States than in other nations.

The roots of American civil liberties can be traced to

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ancient times. The city-state of Athens made a lasting contribution to civil liberty. In the sixth century B. C. , Solon, the magistrate of Athens, produced a constitution that, while flawed, gave the poor a voice in the election of magistrates and the right to call public officials to account. Solon is also credited with first expressing the idea of the rule of law. But Athens knew no limits on the right of the majority to adopt any law it chose, and there was no concept of individual rights against the state. Greek philosophers introduced the idea of "natural law" and the derivative concept of equality; all Athenians (except slaves) were equal citizens, for all possessed reason and owed a common duty to natural law.

The Romans also contributed to civil liberties, first through a rudimentary SEPARATION OF POWERS of government and later by the further development of natural law. Justinian's Institutes recites, "Justice is the fixed and constant purpose that gives every man his due." Nevertheless, the Roman emperors were autocratic in practice; there were no enforceable rights against the state, which practiced censorship, restricted travel, and coerced religion.

In the Middle Ages there was little manifestation of civil liberties. But the idea of a pure natural law was carried forward in Augustine's City of God. On the secular side, the contract between feudal lords and their vassals established reciprocal rights and responsibilities whose interpretation was, in some places, decided by a body of the vassal's peers.

Among English antecedents of civil liberties, the starting point is MAGNA CARTA (1215), the first written instrument that exacted from a monarch rules he was bound to obey. Although this document reflected the attempt of barons to secure feudal privileges, basic liberties developed from it?among them the security of private property, the security of the person, the right to judgment by one's peers, the right to seek redress of grievances from the sovereign, and the concept of due process of law. Above all, as Winston Churchill said, Magna Carta "justifies the respect in which men have held it" because it tells us "there is a law above the king."

Another great charter of English liberty was the 1628 PETITION OF RIGHT, a statute that asserted the freedom of the people from unconsented taxation and arbitrary imprisonment. The HABEAS CORPUS ACT OF 1679 was another major document of English liberty. The BILL OF RIGHTS of 1698 which also influenced American constitutional law, declared that parliamentary elections ought to be free and that Parliament's debates ought not to be questioned in any other place, and it condemned perversions of criminal justice by the last Stuart kings, including excessive BAIL and CRUEL AND UNUSUAL PUNISHMENTS.

The experience of the American colonies was important to the development of civil liberties in the United States. The COLONIAL CHARTERS set up local governments that built upon English institutions, and the colonists jealously opposed any infringements upon their rights. The VIRGINIA CHARTER OF 1606 reserved to the inhabitants "all liberties, Franchises and Immunities ? as if they had been abiding and born, within this our Realm of England."

The MASSACHUSETTS BODY OF LIBERTIES of 1641 expressed in detail a range of fundamental rights later to be adopted in the American BILL OF RIGHTS. Rhode Island was the first colony to recognize religious liberty, largely through the efforts of its founder, ROGER WILLIAMS. The Puritans banished Williams from Massachusetts in 1635 for unorthodoxy, and he settled in Providence. There the plantation agreement of 1640 protected "liberty of Conscience," and this doctrine appeared in the Colony's charter in 1663. The Pennsylvania charter and those of other colonies were also influential in protecting individual rights. ZENGER ' SCASE (1735), in which a jury acquitted a New York publisher on a charge of SEDITIOUS LIBEL, was a milestone in securing the freedom of the press.

By the time of the American Revolution, the colonists were familiar with the fundamental concepts of civil liberty that would be included in the Constitution and Bill of Rights. Unlike the contemporary French experience, where the promise of the Declaration of the Rights of Man went largely unfulfilled for want of institutional safeguards, the American Constitution of 1787 embodied a republican government elected by broad suffrage that was reinforced by judicial review and by CHECKS AND BALANCES among the three branches of government.

The original Constitution, a document devoted mainly to structure and the allocation of powers among the branches of the national government, contains some explicit safeguards for civil liberty. It provides that the "privilege" of habeas corpus, which requires a judge to release an imprisoned person unless he is being lawfully detained, may not be "suspended." The EX POST FACTO and BILL OF ATTAINDER clauses require the Congress to act prospectively and by general rule. Article III guarantees a jury trial in all federal criminal cases, defines TREASON narrowly, and imposes evidentiary requirements to assure that this most political of crimes will not be lightly charged.

Apart from the omission of a bill of rights, which was soon rectified, the Constitution's principal deficiency from a civil liberties standpoint was its countenance of slavery. Without mentioning the term, in several clauses it recognized the legality of that pernicious institution. DRED SCOTT V. SANDFORD (1857) cemented the legally inferior status of blacks and contributed to CIVIL WAR by ruling that slaves or the descendants of slaves could not become citizens of the United States. The EMANCIPATION PROCLAMATION (1863) and the THIRTEENTH AMENDMENT (1865) freed the slaves, but the reaction that occurred after the end of RECONSTRUCTION

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in 1877 and decisions such as the CIVIL RIGHTS CASES (1883) and PLESSY V. FERGUSON (1896) undercut their purposes. The movement toward civil equality did not gain new...