Civil Rights and Liberties
Civil Rights and Liberties refer to the various spheres of individual and group freedoms that are deemed to be so fundamental as not to tolerate infringement by government. These include the fundamental political rights, especially the franchise, that offer the citizen the opportunity to participate in the administration of governmental affairs. Since these individual and group freedoms may also be abridged by the action or inaction of private institutions, demand has increased for positive governmental action to promote and encourage their preservation.
Constitutional provisions, statutes, and court decisions have been the principal means of acknowledging the civil rights and liberties of individuals; for those rights to be maximized, their acknowledgment must be accompanied by legislation and judicial enforcement. Any conception of individual rights that does not include this action component may actually be instrumental in limiting the exercise of such rights.
Constitutional Provisions
The U.S. Constitution, drawn up in the summer of 1787, included guarantees of the following civil rights and liberties: habeas corpus (Article I, section 9); no bills of attainder or ex post facto laws (Article I, sections 9 and 10); jury trial (Article III, sections 2 and 3); privileges and immunities (Article IV, section 2), later interpreted to be a guarantee that each state would treat citizens of other states in the same way they treated their own citizens; and no religious test for public office (Article VI, paragraph 3). Four years later ten amendments (the Bill of Rights) were added to the Constitution in response to demands for more specific restrictions on the national government. The Bill of Rights guarantees certain substantive rights (notably freedom of speech, of the press, of assembly, and of religious worship) and certain procedural rights in both civil and criminal actions (notably a speedy and public trial by an impartial jury). In 1833 (Barron v. Baltimore, 7 Peters 243) the U.S. Supreme Court ruled that these amendments were designed to serve as protections against federal encroachment alone and did not apply to state and local governments. The Supreme Court's position in this case, as stated by Chief Justice John Marshall, was to prevail throughout the nineteenth and early twentieth centuries, despite the efforts of attorneys who argued that the intent of the framers of the Fourteenth Amendment's due process clause (1868) was to extend the protection of the Bill of Rights to the actions of states and localities. From 1925 (Gitlow v. New York, 268 U.S. 652) through 1969 (Benton v. Maryland, 395 U.S. 784), Supreme Court rulings had the effect of incorporating most of the major provisions of the Bill of Rights into the due process clause of the Fourteenth Amendment, there by making them applicable to states and localities as well as to the federal government.
Prior to the adoption of the Civil War amendments there had been little effort to invoke federal authority to preserve individual rights. Furthermore, revisionist historians have shown that the generation that framed the first state declarations of rights and the federal Bill of Rights was not as libertarian as is traditionally assumed—the Alien and Sedition Laws of 1798 being a case in point. The Thirteenth, Fourteenth, and Fifteenth Amendments and the five general civil rights acts spanning the years 1866–1875 established the bases for a vast expansion of federal authority. Although the Thirteenth abolished slavery and involuntary servitude and the Fifteenth prohibited the abridgment of a citizen's fight to vote because of race, color, or previous condition of servitude, the Fourteenth proved to be of greatest import to the sub-sequent development of individual rights.
The first sentence of section 1 of the Fourteenth Amendment defines U.S. citizenship: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." This provision overturned the Supreme Court's 1857 decision in the Dred Scott Case (19 Howard 393) and recognized the primacy of national citizenship. (Citizenship was later described by Chief Justice Earl Warren [Perez v. Brownell, 356 U.S. 44, 64 (1958)] as "man's basic right, for it is nothing less than the right to have rights.") The remainder of the first section of the amendment prohibits the states from abridging the privileges and immunities of citizens of the United States (which the courts interpreted quite narrowly); depriving any person of life, liberty, or property without due process of law; and denying any person within its jurisdiction the equal protection of the laws.
Judicial Interpretation
The five general civil rights acts of the post–Civil War period were efforts to implement the Civil War amendments. Although Congress was primarily motivated by a concern for the newly freed blacks, these statutes—which provided federal protection of individual rights against interference by either public officials or private individuals—never made specific references to African Americans as such. The last of these nineteenth-century civil rights statutes, the Civil Rights Act of 1875, was designed to guarantee to blacks equal accommodations with white citizens in all inns, public conveyances, theaters, and other public places. In 1883 the Supreme Court (Civil Rights Cases, 109 U.S. 3) concluded that the framers of the Fourteenth Amendment had not intended to enable Congress to prohibit private persons from discriminating against blacks. The Fourteenth Amendment was interpreted as prohibiting discriminatory acts by the states only, and consequently the act was declared void.
The major test of state legislation designed to support the segregation and suppression of blacks came in 1896. In Plessy v. Ferguson (163 U.S. 537) the Supreme Court upheld a Louisiana statute requiring separate accommodations for blacks and whites on public carriers, so long as the accommodations were equal. In the years that followed, segregation of the races on the basis of the separate-but-equal doctrine became commonplace throughout the South, and segregation resulting from Jim Crow legislation continued to be pervasive into the mid-twentieth century; in 1947 President Harry S. Truman's Committee on Civil Rights reported that the separate-but-equal doctrine was "one of the outstanding myths of American history, for it is almost always true that while indeed separate, … facilities are far from equal."
The separate-but-equal doctrine became deeply entrenched in the field of public education in the South, and it was not until 1938 (Missouri Ex Rel Gaines v. Canada, 305 U.S. 337) that the Supreme Court began to examine the equality requirement. From then until 1950 the Court, in a series of cases involving graduate school education, held that the separate facilities provided for black students were not equal educationally, but in granting relief to black plaintiffs, the Court did not publicly reexamine the separate-but-equal doctrine. Nevertheless, these decisions paved the way for the Supreme Court's landmark decision of 17 May 1954 (Brown v. Board of Education of Topeka, 347 U.S. 483), overturning the Plessy v. Ferguson precedent and unanimously holding that the separate-but-equal doctrine had no place in the field of public education. The Court based its decision on the Equal Protection Clause of the Fourteenth Amendment, which prohibited states from denying any person within their jurisdiction the equal protection of the laws. A companion case that year (Bolling v. Sharpe, 347 U.S. 497) prohibited segregation in the public schools of the District of Columbia.
A year later, in its implementation decree in the Brown case, the Court ordered the desegregation process to be carried out "with all deliberate speed." Massive resistance ensued, most notably in Arkansas and Virginia, and in 1964 (Griffin v. County School Board of Prince Edward County, 377 U.S. 218) the Court held that the time for mere "deliberate speed" had run out. Subsequent implementation decrees emphasized the obligation of school districts to terminate dual school systems at once and to operate only unitary schools thereafter. When confronted in 1971 with the question of the scope of a federal district court's ability to order school busing to correct state-enforced racial school segregation, the Supreme Court was unanimous in finding that the district court had not transcended the limits of "reasonableness" in its remedial order concerning busing (Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1). After rejecting in 1974 arguments that courts could order metropolitan-wide busing to remedy past discrimination (Milliken v. Bradley, 418 U.S. 717), the Supreme Court became increasingly skeptical about the ability of courts to eliminate racially identifiable schools in urban areas.
The Court in Plessy v. Ferguson had distinguished between social rights, such as the right to ride on public transportation and the right to education, and civil and political rights, saying that the Constitution protected only the latter. Activist groups such as the National Association for the Advancement of Colored People and the American Civil Liberties Union would soon argue against that distinction. Eventually the idea of civil rights expanded to include the right against discrimination in employment, in housing, and in all places of public accommodation.
The Civil Rights Movement and New Legislation
The nonviolent civil rights movement, which had its beginning in the Montgomery, Alabama, bus boycott of 1955–1956 led by Martin Luther King Jr., received increasing national attention during the sit-ins and freedom rides of the early 1960s. Mass demonstrations in Birmingham, Alabama, in the spring of 1963, also led by King, further heightened the urgency of African American demands and helped precipitate President John F. Kennedy's civil rights legislative proposals of June 1963. This legislation, including provisions regarding access to public accommodations, use of federal funds without discrimination, and equal employment opportunity, was signed into law on 2 July 1964, during the early months of President Lyndon B. Johnson's administration. It was the most far-reaching civil rights legislation since 1875.
The public accommodations title of the 1964 act, Title II, was similar in substance to the 1875 provisions struck down in the Civil Rights Cases; this time the legislation rested upon both the Commerce Clause and the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court in 1964 found the Commerce Clause fully adequate to sustain the public accommodations title (Heart of Atlanta Motel v. U.S., 379 U.S. 241, and Katzenbach v. McClung, 379 U.S. 294).
Title VI, which prohibited discrimination in any federally assisted programs, was to prove instrumental in accelerating school desegregation during the Johnson administration. In particular, the passage of the Elementary and Secondary Education Act of 1965 provided funds of sufficient magnitude so that most school districts would be at a serious disadvantage should they lose federal assistance for failing to desgregate. Finally, Title VII created the Equal Employment Opportunity Commission, which struggled for seven years before it was granted enforcement powers—that is, the ability to institute suits in federal courts to enforce U.S. laws against job discrimination.
The Voting Rights Act of 1965 was passed in the aftermath of black-led demonstrations, especially in Selma, Alabama, against discriminatory practices in voter registration in the South. This was the most sweeping voting rights legislation of the century, even though there had been antecedents in the civil rights acts of 1957, 1960, and 1964. The Voting Rights Act of 1970, in addition to being a five-year extension of the 1965 act, included provision for the eighteen-year-old vote in all elections. Before the year was over, the original jurisdiction of the Supreme Court was invoked to test the constitutionality of the new minimum voting age provisions. Although the Court sustained them insofar as they pertained to federal elections, it held that the Fourteenth Amendment's equal protection clause and enforcement clause did not authorize Congress to impose such a requirement in state and local elections. This necessitated the adoption of the Twenty-sixth Amendment, which lowered the minimum voting age to eighteen in all elections.
Of the major civil rights problems confronting the country, housing was the last to be dealt with by Congress. It was not until 1968, shortly after the assassination of King, that Congress—in a new Civil Rights Act—prohibited discrimination in the sale or rental of about 80 percent of the nation's housing, the major exceptions being owner-occupied dwellings with no more than four units and the sale or rental of private homes without the services of a real estate agent.
As the nation's largest minority, blacks have been in the vanguard of efforts to secure individual civil rights. However, the other large minority groups—Indians, Mexican Americans, Puerto Ricans, and Asians—have been victims of the same types of discrimination. Unquestionably, the black revolution has had a salutary effect on the struggles of these minorities to actualize the civil rights guaranteed them by the Constitution. One example is the so-called Indian Civil Rights Act, a rider to the Civil Rights Act of 1968. In view of the anomalous position of the tribal governments of American Indians, the legislation was designed to ensure that tribal governments would be bound by the same limitations imposed by the Constitution on the federal and state governments.
Civil Liberties
The term "civil rights" has been associated with claims by racial minorities against racial discrimination. The term "civil liberties" refers to rights to political participation, particularly freedom of expression and in more recent years the right to privacy, held by every citizen. The scope of protection accorded civil liberties was relatively narrow until the 1960s, in part because the Supreme Court defined freedom of expression narrowly and in part because state infringements on civil liberties could not be challenged until the Court held that the Fourteenth Amendment protected people against such infringements. By the late 1960s, however, the Court had developed a robust jurisprudence of civil liberties, insulating speech from punishment unless it threatened immediate social harm, guaranteeing citizens the right to conduct political demonstrations in public places, and protecting the right of privacy in connection with reproductive decisions. Later Court decisions refused to extend these protective doctrines significantly, but the Court's decisions had nurtured a culture of rights that placed political limits on what legislatures could do when addressing concerns that speech caused social harm.
Bibliography
Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 7th ed. New York: Oxford University Press, 1998.
Garrow, David J. Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Berkeley: University of California Press, 1998.
Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. New York: Knopf, 1975.
To Secure These Rights: The Report of the President's Commission on Civil Rights. Washington, D.C.: United States Government Post Office, 1947.
Urofsky, Melvin I. A March of Liberty: A Constitutional History of the United States. New York: Knopf, 1988.
Wilkinson, J. Harvie III. From Brown to Bakke: The Supreme Court and School Integration, 1954–1978. New York: Oxford University Press, 1979.
—Mark Tushnet
