Civil liberties and civil rights define the powers that we as citizens have in a democratic polity. Our civil liberties are individual freedoms that place limitations on the power of government. Most of these rights are spelled out in the text of the Constitution—for instance, that government may not suspend habeas corpus or pass bills of attainder or ex post facto laws—or in its first ten amendments, the Bill of Rights. But some rights have developed over the years through judicial decision making. The rights in the Bill of Rights limit only the national government’s action, but through a process of incorporation—specifically selective incorporation—the Supreme Court has made some of them applicable to the states.

According to the establishment clause and free exercise clause of the First Amendment, citizens of the United States have the right not to be coerced to practice a religion in which they do not believe, as well as the right not to be prevented from practicing the religion they espouse. Because these rights can conflict, separationists and accommodationists have fought over the meaning of religious freedom since the founding. The courts have played a significant role in navigating the stormy waters of religious expression since then, applying the Lemon test to determine whether government is entangled with religion, and using the compelling state interest test to see if laws affecting religion go beyond the legitimate use of the government’s police power.

Freedom of expression, also provided for in the First Amendment, is often considered the hallmark of our democratic government. Freedom of expression and freedom of assembly help limit corruption, protect minorities, and promote a vigorous defense of the truth. Again, it has been left to the courts to balance freedom of expression with social and moral order, for instance, by applying the clear and present danger test and the imminent lawless action test to see if sedition laws restrict speech unconstitutionally, and by applying the Miller test to determine what is obscene. The Court has allowed the regulation of some speech, such as fighting words, although it has been reluctant to follow codes of political correctness, to allow prior restraint, or to ease the laws of libel.

The right to bear arms, supported by the Second Amendment, has also been hotly debated. Most often the debate over gun laws is carried out in state legislatures.

The founders believed that to limit government power, people needed to retain due process of the law throughout the process of being accused, tried, and punished for criminal activities. Thus they devoted some of the text of the Constitution as well as the Bill of Rights to a variety of procedural protections, including the right to a speedy and public trial, protection from unreasonable search and seizure—including the judge-made exclusionary rule, and the right to legal advice.