Chapter Study Outline


Civil liberties and civil rights protections regulate government by defining spheres of activity (e.g., speech or religious worship) in which the government’s authority to interfere is limited. Although these constitutional guarantees to citizens seem clear in the abstract, they nevertheless produce vexing problems and controversies when applied to specific cases. And whereas all of the institutions of national government have responsibilities to guard the civil liberties of citizens, the United States Supreme Court exercises a great deal of the civil rights and civil liberties agenda and decision-making in American government.

  1. Civil Liberties: Nationalizing the Bill of Rights
    What role has the Bill of Rights played throughout American political history? Does the Bill of Rights protect citizens from both the national and state governments? By what process was the Bill of Rights “nationalized”?
    • The rights in the Bill of Rights are better understood as “civil liberties” because they protect citizens’ freedom from improper government action. The Bill of Rights guaranteed a private sphere of personal liberty free of governmental restrictions, but only the First Amendment is explicit in seeking to limit the national government. Thus the question remained: Did the Bill of Rights restrain the state governments as well as the national government?
    • In Barron v. Baltimore (1833), the Supreme Court established the principle of “dual citizenship,” holding that persons were citizens of the national government and state government separately and that the Bill of Rights thus did not apply to the states.
    • Ratified in 1868, the Fourteenth Amendment held that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Sates; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Despite this language, in the Slaughter-House cases, the Supreme Court continued to apply the concept of “dual citizenship,” setting up a process of selective incorporation whereby the Court would selectively “incorporate” rights from the Bill of Rights into the Fourteenth Amendment on a case-by-case basis.
    • By the 1960s, the Supreme Court had nationalized many rights, including the right to privacy, expanding the reach and power of the national government vis-à-vis the states.


  2. The Bill of Rights Today
    How are the liberties and rights embodied in the Bill of Rights applied today? What are the most salient controversies involving each of these provisions? And how has the Supreme Court ruled?
    • In regard to religion, the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
      • The establishment clause has been interpreted in at least three different ways: (1) that the government cannot establish an official church; (2) that the government cannot take sides among competing religions but can provide assistance to religious institutions so long as it shows no favoritism for any particular religion; and (3) that the government should observe a strict “wall of separation” between church and state.
      • The First Amendment’s free exercise clause also guarantees citizens’ rights to believe and practice whatever religion they choose, although here too the Supreme Court has reserved for itself the right to balance religious claims against public policy.
    • The First Amendment also provides free speech and freedom of the press protections. When difficult choices arise regarding, for example, speech that constitutes “clear and present danger,” symbolic speech, libel and slander, obscenity, “fighting words,” and “hate speech,” the judiciary establishes precedents and rules that determine what speech is or is not constitutionally protected.
    • The Second Amendment is a point of great controversy in contemporary American politics. Although it has largely been fought in the legislative arena and the actual constitutional provision rarely has been decided by the courts, in District of Columbia v. Heller (2008) the Supreme Court overruled a District of Columbia gun control ordinance.
    • Many of the rights in the Bill of Rights concern individuals accused of a crime, who are entitled to “due process of law.”
      • The Fourth Amendment provides for citizens’ rights against unreasonable searches and seizures, which the court has taken to mean that illegally obtained evidence cannot be used at trial.
      • The Fifth Amendment ensures: that grand juries play important roles in federal criminal cases; that individuals are protected against double jeopardy (that is, they cannot be tried twice for the same crime); that citizens are allowed to “take the Fifth” and refuse to testify against themselves; and that property rights are protected via its eminent domain clause.
      • The Sixth Amendment ensures, among other things, that citizens have the right to counsel in criminal trials.
      • The Eighth Amendment prohibits “excessive bail,” “excessive fines,” and “cruel and unusual punishment.”
    • In Griswold v. Connecticut, the Supreme Court held that the Bill of Rights contained a “penumbral” (or implied) right to privacy that would provide a constitutional basis on which to protect a sphere of private activities including birth control, abortion, the rights of homosexuals, and the right to die in physician-assisted suicides.


  3. Civil Rights
    What roles has the national government played in providing citizens with “equal protection of the laws” in the African American civil rights movements and in recognizing other rights claims? How has this changed the balance of federal power? How has this altered the relationship between individuals and the government?
    • In Plessy v. Ferguson (1896), the Supreme Court held that laws that enforced segregation of black and white citizens satisfied the Fourteenth Amendment protections so long as the facilities were equal; this “separate but equal” rule became the precedent that would dominate civil rights law for more than 50 years.
    • During the first half of the twentieth century, the Supreme Court extended the Plessy ruling but defined more strictly the criterion of what constituted “equal” facilities. The “separate but equal” ruling was eventually overturned in Brown v. Board of Education, wherein the court ruled that separate facilities were “inherently unequal.”
    • Although there was a great deal of resistance to the Brown decision (especially in the South), after that ruling, the national government was poised to intervene with strict regulatory policies against the discriminatory actions of state or local governments and the private sector.
    • Moreover, the Brown decision inspired greater activism in the civil rights movement’s civil disobedience and passive resistance efforts, eventually sparking congressional action to expand civil and voting rights for African Americans.
    • Since the passage of major civil rights legislation in 1964, the civil rights struggle has been expanded to questions of employment discrimination and universalized to include women, Latinos, Asian Americans, immigrants, Native Americans, the disabled, and the aged, as well as gays and lesbians.
    • Many of the political battles concerning civil rights now center on the issue of affirmative action (that is, compensatory action to overcome the consequences of past discrimination and to encourage greater diversity). In 1978, the Supreme Court challenged the constitutionality of affirmative action on the grounds that, under some circumstances, it constituted reverse discrimination. This is still a very active issue as the Supreme Court continues to examine educational admissions standards and refines its definition of what is and what is not constitutional.