Chapter Study Outline


Civil liberties 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 liberties agenda and decision making in American government.

1. Origins of the Bill of Rights

What is the historical “path” that gave us the Bill of Rights? What were the arguments made against adopting a Bill of Rights? What did its proponents argue? What are civil liberties?

  • Although some sought to add a Bill of Rights to the Constitution at the Constitutional Convention, Alexander Hamilton and other Federalists argued against its adoption, claiming that a Bill of Rights was unnecessary and even potentially dangerous to the rights of the people.
  • Recognizing the need to appease Antifederalist complaints, James Madison fought for amending the Constitution after ratification to include specific rights protections.
  • Eventually the Bill of Rights was adopted and ratified, defining the limits of government and the essential liberties of American citizens.
  • The Bill of Rights actually contains provisions that are better understood as civil liberties, the protections of citizens from improper governmental action.

2. 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 place restraints on government. The Bill of Rights guaranteed a private sphere of personal liberty free of governmental restrictions, although 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-ˆ-vis the states.

3. 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. In 1971, the Supreme Court articulated the Lemon Test—a set of criteria intended to provide guidance on whether government aid to religious schools would be considered constitutional.
    • 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 courts are also hesitant to allow the government to exercise “prior restraint”—the practice of blocking publication by the press of material deemed harmful to its interests.
  • 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 (thereby invoking the exclusionary rule).
    • 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.