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GOVT 2305. Civil Liberties and the Bill of Rights. The final constitutional principle we will discuss is individual liberty. The fancy term we will use is civil liberty.
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GOVT 2305 Civil Liberties and the Bill of Rights
The final constitutional principle we will discuss is individual liberty. The fancy term we will use is civil liberty.
Note that other principles are contained in the constitution, but these (most notably equality) were added to the document after the original document was ratified.
For past blog posts on relevant material for this section, click on these: Bill of Rightscivil libertiesestablishment clausefirst amendmentfree exerciseprocedural liberty
Two quick definitions of the term “civil liberty.”1 - The protections of individuals from the arbitrary powers of government.2 - “the freedom of a citizen to exercise customary rights, as of speech or assembly, without unwarranted or arbitrary interference by the government.”
So civil liberties are guarantees against arbitrary power and in favor of the ability to engage in certain activities central to self government.
You can find more expansive definitions, thoughts and comments here: About.comACLU: This Week in Civil LibertiesCato Institute: Civil LibertiesDavid Hume, Of Civil LibertyWikipedia
Note: A civil liberty is not the same as a civil right. Freedom of speech is a civil liberty. The right to equal protection is a civil right.We will cover this more fully in the next section.
Civil liberties are established by limiting the government. Specific limits are placed on its powers. The question is how is this best done?
As we will see, there are two ways to do so. The first is to design the system so that its various parts check each other. The second is to place explicit limits on the powers of government in a document called a Bill of Rights.
The document as ratified contained the former, but not the latter.
The Federalists thought the republican design, in addition to the checks and balances was sufficient to limit governing power, but the Anti-Federalists needed a further guarantee.
This guarantee would become the first Ten Amendments, also known as the Bill of Rights.Have a quick look through it by clicking here: U.S. Bill of Rights.Its short, it wont take long.
The Bill of Rights places two general types of limitations on the powers of the national government: SubstantiveProcedural
As a consequence we can speak of procedural liberty (notably due process) and substantive liberty.
A substantive limit refers to what government can pass laws about.(religion, speech, press etc…)
Example: You are free to say what you wish because government is limited from passing laws which restrict speech. (we will analyze exceptions to this in due course)
A procedural limit refers to how the executive and judicial powers can be used.The Due Process of Law
Example: How, and under what conditions, can someone be searched? And if one is accused of a crime, what justifies a trial? And one goes to trial, what rights does a defendant have in a court of law?
Basic Fact: The U.S. Bill of Rights has ten sections – these are the first ten amendments to the Constitution. There is no separate section titled “the bill of rights.” the term simply refers to the first ten amendments.
Some useful links regarding the Bill of Rights.- Its History and Significance- Wikipedia- James Madison and the Bill of Rights
It is relatively short and vague. As is the rest of the Constitution. It is commonly reinterpreted, often controversially so.
Example: A recent Supreme Court case dealt with the question whether gaming was constitutionally protected speech.
Bills of Rights were commonly attached to state constitutions. It was argued that they were necessary because the states had – as we know – powers that were “many and undefined.” States could potentially pass laws that treated people arbitrarily and limited individual freedom.
As we will see soon, many states – and colonies before them – did restrict religious freedom. Many had state sponsored religions.
Hamilton and Madison both argued that a national bill of rights was unnecessary because the national government’s powers were “few and defined.” Think about it – Congress has no delegated power to pass laws on religion and speech, etc ….
The Anti-Federalists were unconvinced and demanded that a Bill of Rights be added to the document to ensure that specific limits were placed on the national government.
Five states, including Massachusetts, ratified the Constitution on the condition that such amendments be added immediately.
James Madison agreed to introduce and push it through the House when he became a member of it. He thought it was harmless.
The addition of the Bill of Rights is therefore a product of a compromise between the Federalists and the Anti-Federalists. It was the subject of Federalist #84 (wikipedia). Its argument was rebutted in Anti Federalist #84.
Noah Webster for example. It is impossible to spell out all the rights of individuals. To only list a few would imply that others did not exist.
Listing six freedoms in the First Amendment might lead others to suggest that these are the only ones that exist.
What about rights not mentioned in the Constitution? Privacy?Travel?Contract?Property?Voting?
For general information: Things that are not in the Constitution.
If the right is not explicitly written in the Constitution, it may be argued that the power does not exist.
Here’s an example of this reasoning. It involves the rights of gays and lesbians and whether they sexual orientation is covered by the equal protection clause.Clarence Thomas’ Dissenting Opinion in Lawrence v. Texas.
I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.
There would be no way to make this argument if there was no First Amendment because the rights cannot be limited to those listed.
Was this what Hamilton was concerned about here? “. . . bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
Nevertheless, a bill of rights was proposed and debated during the Constitutional Convention(August 20).It was not accepted.
But it is also argued that a statement of the specific liberties held by the people is essential to the formation of a free society.It clearly establishes the importance of these rights.
Every time we read the First Amendment, for example, we are reminded of the importance of religious liberty as well as that of speech, press, assembly and petition. They attain a unique status among all liberties.
And once the 14th Amendment was added to the Constitution these rights guaranteed by the national government has to be recognized by the state governments.Many states didn’t.
The rights listed in the Bill of Rights evolved over time.Some of this history we have discussed, so this concept should be familiar by now.
We have noted four specific predecessors, in British history, to the Bill of Rights.
The Charter of LibertiesMagna CartaThe Petition of RightThe English Bill of Rights
The Charter of Liberties (1100) was issued by Henry I in order to convince the nobility and the church that he would abide by the law.
These were a bit random, and were soon forgotten. But they would become the model for the Magna Carta which established specific procedural limits on the power of the monarchy.
