I was going through a file earlier today, and came across an entry I wrote a couple of years ago for the Encyclopedia of the Constitution. My task was to define “civil liberty.” Sometimes, it’s good to remind ourselves what our civil liberties are–and why they matter.
Here’s what I wrote:
Civil liberty is the right of an individual to be free of unjustified government interference with his or her person, property, beliefs or decisions. In the United States, the Bill of Rights sets limits on the sorts of government interference that can be legally justified. Understanding what those limits are, why they were put in place, and how they compare to rights of citizens in other countries is central to understanding American civil liberties.
Those who drafted the nation’s foundational documents were profoundly influenced by the philosophy of the Enlightenment, especially the writings of John Locke; they believed that the state had a moral obligation to respect individual autonomy, defined as the right of individuals to set and pursue their own moral ends. Accordingly, our constitutional system begins with the premise that government is not entitled to interfere with an individual’s behaviors unless that individual is harming the person or property of a non-consenting other. This is sometimes called the “libertarian principle.”
The U.S. Bill of Rights protects fundamental civil liberties: freedom of speech and the press, freedom to assemble and “petititon the government for redress of grievances” (i.e., dissent), religious liberty, freedom from unreasonable searches and seizures, and a variety of other procedural protections that together constitute basic American due process guarantees. More recently, equal protection of the laws has been added as a fundamental right.
Civil liberties (and human rights generally) are based on the belief that individuals have inherent dignity and status, simply by virtue of being human, and that government has the obligation to recognize and respect that personhood. In the U.S. legal system, unlike some other countries, civil liberties are individual in nature. The American constitutional system does not recognize group rights; ethnic and other minorities do not have rights separate and apart from those enjoyed by individual members of the group.
At their base, civil liberties disputes all revolve around finding the proper balance between the power of the state and the right of individuals to live as they choose. This is primarily a procedural issue: who shall decide? Who, in other words, has the authority to make any particular decision, the government or the individual?
Citizens frequently fail to recognize that the essential characteristic of our constitutionally protected liberties is this restraint on the government’s power to decide certain matters, and they therefore fail to distinguish between the act of limiting government’s power and the endorsement of a particular outcome. When a court refuses to allow an agency of government to censor a particular book, for example, the court is not endorsing the content of that book. It is upholding the principle that citizens have a right to choose their own reading material, free of government interference. When courts refuse to allow official prayer in public schools, it is not because the judges are hostile to religion; it is because parents have a right to control the religious upbringing of their children, free of government interference. The emphasis is upon how decisions are made rather than what decisions are made. In the American legal system, good ends cannot be used to justify improper means.
The procedural nature of our constitutional system is often criticised by communitarians who believe that citizens should be more “embedded” in a shared moral framework. The negative nature of American civil liberties, where liberty is envisioned as freedom from government control, is also criticised by those who favor the addition of so-called positive rights, or entitlements, to our conception of fundamental rights, much as is the case with the U.N. Declaration of Human Rights and many European constitutions that give citizens a government-insured right to adequate housing, medical care or education. Whatever the merits or flaws of those arguments, our particular constitutional structure was built upon a commitment to individual choice and respect for the integrity and inviolability of the individual conscience. Partially as a result, America has one of the most individualistic cultures in the world, and our legal system both reflects and reinforces that individualism.
It is instructive to note that there was no disagreement between the Federalists and Antifederalists about the proper role of government and the nature of the so-called inalienable rights, or civil liberties, that each citizen was entitled to enjoy. Their great debate was not a dispute about the importance of guaranteeing individuals freedom from government interference; rather, these founders disagreed about the proper method of insuring that personal freedom. Antifederalist critics of the new constitution wanted a Bill of Rights, specifying the liberties that would be insulated against official action. Federalists like Alexander Hamilton, on the other hand, argued that the new national government was a creature of “delegated powers,” only, and that it therefore lacked any authority to invade personal liberties. Hamilton worried about the dangers of “enumerating,” or listing protected rights. He and others feared that the existence of a written Bill of Rights would lead future government officials to argue that if a right was not specifically listed, it was not protected. The compromise between these two arguments was the language of the Ninth and Tenth Amendments, sometimes called the “rights and powers” Amendments. Read together, they provide that enumeration of certain rights is not to be construed as denial of others, and that any powers not specifically given to the federal government remain with the states or the people.
Originally, the Bill of Rights restrained only the federal government. Many states continued to have “established” religions until the early 1800s, and continued to enforce a variety of other laws that were inconsistent with civil liberty. It was not until after the passage of the 14th Amendment, in the wake of the civil war, that the Bill of Rights would be “incorporated” into the 14th and made binding on all levels of government.
Civil liberties are not protected against private infringements. The Bill of Rights limits government only; unless there is “state action” (i.e., action by a unit or agency of government), there is no violation of civil liberties. Civil rights, on the other hand, are rights to be free of discrimination by private parties. Civil Rights are creatures of statute, not products of the constitution. The first federal law establishing a legally-enforcable right to be free of private discrimination in employment, housing or education was the 1964 Civil Rights Act.
When the constitution was first drafted, civil liberties were enjoyed by free white male property owners. Over the years, despite some “detours,” the American idea of liberty has expanded. Today, women, racial and ethnic minorities are entitled to the same fundamental rights as white males, and since the 1990’s, great strides toward equality have been made by members of other minorities, notably gays and lesbians.
