Module 09 Sections
Civil liberties are protections for citizens against illegitimate encroachments on the part of the government. In many respects, the Constitution itself is a guarantee of civil liberties, because the Constitution creates a government of enumerated powers, which means that the government can only do the things that it is specifically empowered to do in that document. Alexander Hamilton argued this very point in Federalist 84, in which he asserted that the Constitution, properly understood, is itself a bill of rights. “The truth is…” he wrote, “that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”
It was Hamilton’s opinion in 1787 that a bill of rights was both unnecessary and dangerous. Politically, though, the Bill of Rights became a necessity in order to get the Constitution passed in the states. The Federalists, of which Hamilton was one, acquiesced on the point, and the Bill of Rights was promised, and in 1791 framed and ratified. Read Hamilton’s thoughts on the matter here:
And then have a look at the Bill of Rights, which is simply the first ten Amendments to the Constitution here:
The civil liberties of American citizens, as guaranteed by the Bill of Rights, are illustrated by a series of statements regarding what government may not do. In the 1st Amendment, for example, there are protections of free speech, free exercise of religion, peaceable assembly, and the free press among others. These protections, along with many others in the Bill of Rights, mean that there is simply a zone of non-interference in which the government cannot legitimately act. In the end, these protections emerge from the American understanding of equality. They exist, in no small part, to ensure that all citizens can live in a state of general freedom. And the concern here is the possibility of governmental abuse of power.
The term civil rights refers to a different set of concerns. Whereas civil liberties refers to the zone of non-interference citizens are guaranteed, civil rights is about what citizens are permitted to do in the political sphere. So while civil liberties refers to things that government must never do, civil rights require positive action on the part of the government. As was the case with civil liberties, civil rights flow from the American understanding of equality, but these sorts of rights require that the government must act in order to guarantee protections to its citizens. Whereas we typically look to the Bill of Rights to provide examples of civil liberties, we typically look to the 14th Amendment and related legislation to understand civil rights. The 14th Amendment, for example, guarantees citizenship and equal protection rights, and things like being free from employment discrimination based on race, gender, age, or disability are addressed by legislation passed by Congress.
You can read the 14th Amendment here:
CIVIL RIGHTS, RACE, AND THE CONSTITUTION
Civil rights concerns in the United States were, for most of the nation’s history, about race. And this flows directly from our early history with slavery, the compromises placed into the Constitution to protect that institution, and American history coming out of the Civil War, the event which ultimately solved the slavery problem in the United States.
The Constitution of 1787 was, among other things, a compromise between Northern and Southern interests, and this was a necessary compromise if the young nation was to continue as a single country. The American South would not have accepted a constitution that did not continue the practice of slavery as a matter of law. And the Constitution did this in three meaningful respects, even though no variant of the word “slavery” appears in the document.
Article 1, Section 2, Clause 3 includes the Three-Fifths Clause, which explains how slaves are to be counted when representation is allotted in the House of Representatives. Article 1, Section 9, Clause 1 temporarily restricted Congress from prohibiting “The Migration or importation of such Persons any of the states now existing shall think proper to admit” until 1808. Finally, the Fugitive Slave Clause was included in Article 4, Section 2, Clause 3. This clause required that escaped slaves would be returned to their owners.
These three clauses were the cost of political unity at the time the Constitution was being debated, and ultimately ratified. They were not the final word on slavery in the United States though, that was provided by the Civil War, which was fought from 1861 to 1865, and cost between 705,000 and 900,000 lives.
With the ultimate decision on slavery being provided by the result of the war, the Constitution was amended three times in the years that followed. The 13th, 14th, and 15th Amendments, commonly referred to as the Civil War Amendments, ended the practice of slavery, extended civil rights to freed slaves, and extended voting rights to freed slaves, respectively. They accomplished all of these things without specifically referring to blacks, or any other race for that matter. The Amendments, while clearly inspired by black chattel slavery in the United States, were clearly written to include the entire human family.
The Civil War Amendments were ratified in 1865, 1868, and 1870 respectively, but these did not settle civil rights matters in the United States. They merely provided the framework within which these concerns would be addressed moving forward.
Racial tensions continued in the wake of the Civil War, and what has become known as the Jim Crow South emerged. Jim Crow laws were designed to keep whites and blacks in the American South segregated as a matter of law in public facilities like restaurants, hotels, public transportation, and public schools, to name but a few. They began in earnest in the 1880s after Reconstruction, and continued until they were finally abolished as a matter of law in the mid 1960s. These laws generally purported to create a system of “separate but equal” accommodations throughout the South, accommodations which were, in fact, separate, but rarely approached equal in any meaningful sense of the term.
The Supreme Court and Civil Rights
Plessy v. Fergunson (1896)
After the ratification of the Civil War Amendments, a series of Supreme Court cases defined the long march toward social equality in the United States. The first important such case was Plessy v. Ferguson. This case concerned an 1890 Louisiana law, which required railway companies to provide equal, but separate accommodations for blacks and whites on their passenger cars. Passengers who occupied a seat in a car set aside for the opposite race were fined $25 under the law.
Homer Plessy, whose ethnic heritage was 1/8 black, sat in a car set aside for white passengers. He was arrested when he refused to vacate his seat, and his case ultimately found its way to the Supreme Court of the United States, as Plessy claimed the Louisiana statute in question violated the guarantees of the 13th and 14th Amendments. The 13th Amendment was argued in terms of the badges of slavery. By virtue of the separation of the races, Plessy contended “the badges of slavery” rather than slavery itself were being perpetuated. Ultimately, this form of argument would win out, but, in this case, it was dismissed rather abruptly by the Supreme Court.
Justice Brown wrote for the majority, contending that both social and political distinctions were at stake, which led to a differentiation between political and social rights in his opinion. Justice Brown asserted that distinctions based on skin color were, in the end, beneficial to both whites and blacks.
Justice Brown’s main example, that of segregated schools, would become pivotal in the 1950s in Brown v. Board of Education (the case which would ostensibly overturn the Plessy decision), but in 1896 that example would prove, in Justice Brown’s estimation, that “separate but equal” accommodations in the Louisiana railway case were justified. He wrote that the most common instance of segregation “is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced.”
If segregation in schools was constitutionally acceptable, then clearly passenger cars on trains could be racially assigned as well.
Ultimately, Justice Brown came to address this case in psychological terms. If blacks felt themselves to be inferior in a separate but equal arrangement, that was their own fault. If the roles were reversed, whites would not feel inferior. Therefore, blacks should not feel inferior either. The Constitution, he held, could do nothing to make the races equal in social terms.
Whereas Justice Brown saw fit to dismiss Plessy’s 13th Amendment claim, Justice Harlan was not so inclined in his dissent, which is generally considered one of the greatest opinions in the history of the Supreme Court. The badges of slavery argument was compelling to Harlan, because in his mind the Civil Rights Amendments were about more than simple freedom.
According to Harlan, there is a dignity that accompanies citizenship, and the Louisiana law in question was not designed to restrict the movements of whites and blacks equally. Rather, it was designed with the exclusion of blacks as its goal, regardless of how cleverly worded it might have been. The ultimate goal of the law was to keep blacks among themselves when traveling, and, “No one would be so wanting in candor as to assert the contrary.”
Harlan’s dissent in this case introduced the concept of a “color-blind Constitution.”
You can read the case excerpted here:
Brown v. Board of Education (1954) and Bolling v. Sharpe (1954)
These cases mark the end of a campaign to achieve racial equality, which had been defined to this point by the separate but equal doctrine evident in Plessy. This campaign, which involved a number of cases, came to a head with Brown v. Board of Education, when the Court finally and overtly decided against separate but equal formulations. Relying on the work of psychologists and sociologists, the Court concluded that the segregation of children in schools on the basis of race deprived those children of equal educational opportunities, even when the physical facilities and other tangible factors were equal. This was the case, according to the Court, because the separation of black children on the basis of race alone narrowed their opportunities to learn by association with others in the community. A feeling of inferior status resulted which would affect them throughout their lives. As a result of this line of reasoning, the Court ruled in Brown v. Board of Education that separate but equal institutions are inherently unequal, and thus violate the 14th Amendment’s Equal Protection Clause.
One consequence of this was a revolution in constitutional law. Subsequent decisions extended the Brown principle to other segregation laws. State laws that perpetuated this racial caste system were invalidated, and their enforcement at the state level gradually ended. The 14th Amendment addresses only acts undertaken by the government. “Nor shall any state deny…the equal protection of the laws,” is how the text reads. But new doctrines were developed which served to extend this constitutional prohibition against racial discrimination to private activities specifically encouraged or supported by the states. New federal statutes were enacted in order to deal with acts and practices depriving black citizens of the right to vote, and to secure for them equal treatment in places of public accommodation, equal employment opportunities, and equal access to housing among other things.
The impact of Brown and related desegregation cases goes well beyond racial issues. Cases arose in which the central logic of Brown was brought to bear on gender, age, sexual orientation and a host of other concerns. In the final analysis, this case represented a wholesale shift in the way Americans understood race generally, and civil rights specifically in the United States. This shift was part and parcel of an overruling of Plessy, which had been decided nearly 60 years before.
Brown was not only decided unanimously, every Justice signed on to the opinion. This was a goal of Chief Justice Earl Warren, who saw the need for a unanimous, united Supreme Court in order to face down the anticipated massive Southern resistance to the ruling. Unlike Plessy, this case was argued on 14th Amendment grounds exclusively. Segregated schools, the plaintiffs contended, deprived black students of the equal protection of the laws as guaranteed by the 14th Amendment. As such, they needed to be struck down wholesale by the Court.
Chief Justice Warren, writing the opinion for the unanimous Court, did in fact appeal to the 14th Amendment for instruction in the matter, but he determined that looking to the original intent of the Amendment was not sufficient in this case. Additionally, he asserted that the nature of public education at the time of the ratification of the 14th Amendment was simply different from the public education at the time of the hearing of this case in the 1950s. The 14th Amendment, then, according to Warren, was silent on the issue of education.
He went on to paint a picture of the importance of education in 1954 America, and asked if the segregation of the races in educational facilities deprived the children of the minority group of educational opportunities, concluding, quite easily, that it did.
In approaching the case in this manner, the Court did not reject the Plessy argument per se; it rejected the finding based on an enhanced knowledge of social science in 1954. Justice Brown asserted in Plessy that if blacks felt inferior because of separate but equal laws, it was their own fault. In this case, however, the Court decided that those who were segregated did, in fact, have reason to feel inferior. This is clearly not the color-blind Constitution of which Harlan spoke in his dissent in Plessy. This is a reformulation of the majority opinion of the previous case to reverse the outcome.
Having decided this case and the issue of segregation in the states on Equal Protection grounds, the Court next turned its attention to the segregated schools of Washington, DC in Bolling v. Sharpe. DC schools, which were administered by Congress, were precisely the grounds upon which the Court had relied in Plessy to uphold the validity of segregation generally, so it comes as no surprise that the Court needed to address this in tandem with its Brown decision.
Brown was decided on 14th Amendment grounds, but the 14th Amendment applies only to the states. Had the Court chosen only to decide Brown, it would have desegregated the schools in every state, yet left them segregated in the nation’s capital. The Court had to find another section of constitutional language to apply to DC, and the 5th Amendment’s Due Process clause fit the bill. That this had never been seen as a mandate for desegregating schools since its ratification in 1791 was of no consequence to Chief Justice Warren.
He simply concluded that equal protection and due process are not mutually exclusive.
He did not raise the question of how segregation was a violation of due process, which was understood to mean that legal procedures had been satisfied by those who Framed the 5th Amendment. The Court invalidated segregation in DC schools with this ruling simply because it had to.
The larger question that comes out of the civil rights cases is one concerning the nature of federalism. From the close of the Civil War onward, the authority of the states was consistently undermined in the name of civil rights. Another question that arises is one regarding the Supreme Court’s increasing power, especially in civil rights issues. Clearly some form of governmental action was necessary given the condition of race relations in the country. The Supreme Court filled that void.
In the final analysis, the Supreme Court was unable to address racial issues in this country fully. Justice Brown turned out to be prophetic when he said in his Plessy opinion that the races would only come into a condition of social equality as a result of mutual affinity. For all of its work in civil rights, the Court was unable to accomplish this, but perhaps that would be too much to ask of a political institution.
Brown was by no means the final word on race in the United States. A full decade after Brown was decided, the Civil Rights Movement was in full swing. Martin Luther King’s “Letter from a Birmingham City Jail” does a nice job of encapsulating the most important ideas of the period.
That same period saw the passage of the Civil Rights Act (1964) and the Voting Rights Act (1965). And while racial concerns did improve in the wake of these Supreme Court cases and pieces of legislation, the United States continues to experience a certain amount of difficulty in terms of race.
For an overview of the Civil Rights Act of 1964, listen to the following from 60-Seconds Civics:
And for the Voting Rights Act of 1965, listen to this:
Civil Rights for Women
At the same time black Americans were fighting for civil rights, so too were women. While both movements relied overtly on the language of equality in the Declaration of Independence, they took different trajectories given the underlying history of the two groups. While blacks argued against a tradition of oppression, women argued primarily against a history of protection. Whereas blacks had been enslaved in the United States, women found themselves largely in a condition of subjection to the men in their lives, be they fathers or husbands. Just as the state had supported a system of oppression of blacks, first with slavery and later with Jim Crow, the state also supported a patriarchal system in which women were “looked after” in paternalistic fashion. They were largely excluded from voting, in many cases could not own property, and were excluded from holding any number of jobs, among other things.
The women’s rights movement largely originated with the Seneca Falls Convention in 1848, which was the first such gathering of its kind. At that convention, Elizabeth Cady Stanton, Lucretia Mott, and a number of Quakers (Frederick Douglass was also in attendance) demanded voting rights for women, which was a radical notion at the time.
This began a movement which would ultimately lead to the extension of the franchise to women with the ratification of the 19th Amendment in 1920, some 72 years later.
This success in achieving voting rights for women was part of a larger movement which continues to this day and encompasses a much larger set of concerns. Highlights along the way included a federal law in 1872 requiring equal pay for equal work for federal employees, the establishment of the Women’s Trade Union League in 1903, and the creation of the League of Women Voters in 1920. But perhaps nothing furthered the cause of civil rights for women more than World War II. With much of the male population serving in Europe and the South Pacific, women entered the domestic workforce in unprecedented numbers. And when the war was over, they kept working.
The movement gained strength after the war. In 1963, the Equal Pay Act became law, and the year after that, Title VII of the 1964 Civil Rights Act banned discrimination on the grounds of race and gender, among other things. In 1972, Congress passed Title IX of the Education Amendments, which required that schools receiving federal money of any kind provide equal access to educational programs, including sports, to men and women.
The early 1960s also saw the rise of feminist culture with the publication of Betty Friedan’s The Feminine Mystique in 1963, which is generally recognized as ushering in the second wave of feminism in the United States.
In addition to these things, a number of Supreme Court cases altered the civil rights landscape for women. The most famous of these is undoubtedly Roe v. Wade (1973), which found a right to abortion for women in the right to privacy, but other, lesser known cases are likely more important. In Griswold v. Connecticut (1965) the Court found a Connecticut law banning the use of contraceptives unconstitutional, establishing a right to privacy within a marriage along the way. This protection was extended to unmarried people in Eisenstadt v. Baird in 1972. In Reed v. Reed (1971) the Court held that a law that discriminates against women (in this case, the preferential appointment of a male administrator of an estate) is unconstitutional under the 14th Amendment. In 1996, the Court held in United States v. Virginia that the Virginia Military Institute, the only public institution left in the Unites States with a male-only admissions policy, had to begin admitting women to the men’s program.
The gay rights movement in the United States, while currently at the forefront of civil rights discussion, has had a shorter history than the black and women’s civil rights movements. Whereas blacks and women have, in many respects, been striving toward equality since the nation’s founding, the gay rights movement didn’t really begin until the 20th century. With the Supreme Court’s ruling in Obergefell v. Hodges, which guaranteed the right to same-sex marriage, though, it is clear that this movement has achieved quite a lot in a relatively short period of time. It might be hard to believe now, but homosexuality was considered a mental disorder as late as 1973, when it was finally removed from the Diagnostic and Statistical Manual of Mental Disorders.
But it was another book which started to change things in earnest. In 1948, sex researcher Alfred Kinsey published Sexual Behavior in the Human Male. In that book, Kinsey concluded that homosexual behavior among men was much more prevalent than previously believed. While this book did not change things in terms of civil rights for homosexuals, it did move the conversation about homosexuality in a decidedly different direction. But things would get more difficult for homosexuals before the tide turned later in the 20th century.
In April of 1953, President Eisenhower signed Executive Order 10450, which banned homosexuals from working for the federal government or its contractors. The order was drafted on the assumption that the “perverse” behavior of homosexuals created a security risk for the American people. Eisenhower was acting on the assumptions not only of the American public, but of the American medical and psychological community. The American Psychiatry Association listed homosexuality as a mental illness, calling it a “sociopathic personality disturbance.”
It was also in the 1950s that the Supreme Court made its first ruling in a gay rights case. In One, Inc. v. Olesen, the Court held that laws banning gay magazines violated the right to free speech. Though the case was a minor one, it had the net effect of fostering a community, a community which was able to maintain itself through the written word. As the representative branches of the federal government worked contrary to the gay rights movement’s interests, the Supreme Court, in no small way, guaranteed the group’s ability to soldier on.
By 1962, cracks were beginning to show in the resistance to the move toward enhanced gay rights. In that year, Illinois became the first state to decriminalize homosexuality by decriminalizing sodomy. Just 18 years later, in 1980, the Democratic Party became the first major party to endorse a gay-rights platform, which they did at their National Convention.
With public opinion slowly shifting towards gay rights, the Department of Defense issued a groundbreaking order: the US military was no longer allowed to deny gay applicants from joining the US military. The “Don’t Ask, Don’t Tell” doctrine, so-called because it required that military recruiters not ask applicants about their sexual orientation, and that servicemen not openly disclose their sexual orientation to their colleagues, was implemented in 1994 by the Clinton administration.
That same Clinton administration worked to undermine the march toward fully enhanced gay rights when President Clinton signed the Defense of Marriage Act (DOMA) into law in 1996. DOMA was drafted in order to define marriage as a legal union between one man and one woman, and to provide that no states be required to recognize same-sex marriages from any other state. Consequently, even as liberal states across the country began legalizing gay marriage, large swaths of the gay population remained unable to marry.
The issue of gay marriage was decided once and for all by the Supreme Court, of course, in Obergefell v. Hodges, but prior to that there were a number of cases at the Supreme Court level which impacted the gay rights movement. The foundation for these cases was provided by Bowers v. Hardwick, a 1986 case in which the Court held that a Georgia law criminalizing sodomy (and by extension other, similar laws) was constitutional. Ten years later, the Court heard Romer v. Evans after a state constitutional amendment was passed in Colorado which prevented homosexuals from achieving protected class status. The Court ruled that the amendment did not satisfy the Equal Protection Clause of the 14th Amendment, and was thus invalid. This set the stage for the Court to revisit its holding in Bowers, which it did in Lawrence v. Texas (2003). In this case, an anti-sodomy law in Texas (and by extension similar laws in 13 other states) was struck down. The Court in Lawrence repudiated the prior ruling in Bowers, holding in 2003 that the liberty interest in the 1986 case had been construed too narrowly. The Court held in 2003 that consensual sexual activity between adults is part of the liberty protected by substantive due process under the 14th Amendment.
Lawrence v. Texas had the net effect of “normalizing” homosexual relations in the United States, and this set the stage for the gay marriage movement, which many believed was the ultimate goal of the American gay rights movement. After a good deal of state activity, in state legislatures, in the form of ballot initiatives, and in the courts, the Supreme Court stepped in and heard Obergefell v. Hodges in 2015, which will likely be remembered as the most important case concerning gay rights in American history. In this case, the right to marry was extended to homosexual couples. Given that it was an act of the Supreme Court that accomplished this, homosexual marriage can only be rendered against the law again by a future Supreme Court case which overturns Obergefell, or by constitutional amendment.
America’s Ongoing Concern with Civil Rights
The United States was founded on the notion that governments are instituted to secure the rights of the governed. From the very beginning, though, the United States fell short of securing everyone’s rights. The history of America has been the history of slow, sometimes painfully slow progress toward what the Framers called “a more perfect union.” The system put in place in 1787 was the very mechanism by which blacks, women, and homosexuals, all groups that were treated quite poorly throughout most of American history, came to enjoy their rights more broadly.
And this process continues to play out, year after year. Most of the time the process plays out quietly, in relatively small ways. To get a sense of what this typically looks like, have a look at this video, which, among other things, addresses whether people’s criminal histories should be off limits for employers to question as people apply for jobs:
- Civil Liberties
- Civil Rights
- Due Process
- Equal Protection