Study

The Constitution that emerged from the Philadelphia convention in 1787 did not seriously address civil liberties. During debates over ratification, the Antifederalists argued that, by failing to provide explicit protections for individual citizens, the new Constitution invited tyranny. Bowing to political pressure, James Madison agreed to introduce a bill of rights during the first Congress. Its provisions limited the capacity of government to impose heavy conformity costs on those whose views differ from the majority.

Although the Bill of Rights provides a clear statement of the “fundamental maxims of free governments,” they were not initially applied to state laws and practices. Indeed, until the late 19th century, its protections were virtually meaningless, as most disputes involved state governments. The Fourteenth Amendment, which gave the national government the power to protect former slaves, opened the door to the nationalization of civil liberties. It states that all persons enjoy the same civil liberties and rights and that states cannot deny these without due process of law.

Under the cover of the Fourteenth Amendment, a long series of decisions by the Supreme Court gradually extended the Bill of Rights to state laws and practices. This process of incorporation altered the balance of power between the national and state governments and expanded the range of protection offered by the Bill of Rights.

While the language in the Bill of Rights is clear and unequivocal, its application is not. For example, what if two or more guaranteed liberties come into conflict? Furthermore, new technologies and modern lifestyles have created novel civil liberties dilemmas.

The exact boundaries of the protections offered by the Bill of Rights are set and reset by a few unelected federal judges guided as much by personal, partisan, and ideological preferences and needs posed at times of war and other crises as by their understanding of the law. The responsiveness of judges to these political and institutional exigencies often keeps the federal courts from deviating too far from public opinion. If history suggests one certainty when it comes to civil liberties policies, it is that they will be continuously revisited and frequently revised.

Review Questions

• Through what individual steps did the Constitution acquire civil liberties protections?
• How has individual liberty been elevated from a private local matter into a prominent national policy issue?
• How has the role of national government varied in the development of civil rights versus civil liberties policies?
• How did the Bill of Rights come to apply to states?
• Which parts of the Bill of Rights currently apply to states?
• Why do governments tend to restrict speech and other liberties more in wartime than in peacetime? How have these restrictions varied over time?
• How has the Internet changed the way obscenity is regulated?
• What is the Court’s current position on prayer in school? Is this position supported by the public? How is it enforced?
• Who is granted the right to “bear arms” by the Second Amendment? Has the Court’s answer to this question changed over time?
• Do the states still have a role in defining civil liberties?
• What is the Court’s current stance on capital punishment? What have been some past Court objections to executions, and how have states attempted to address these issues? How do executions vary by state and region?
• How supportive has the public been about the incorporation of criminal rights into the Fourteenth Amendment? How has the level of incorporation altered with changes in the Court's membership?
• What rights do citizens have against police searches and seizures of their property? How broad are these rights?
• What is the constitutional basis for the right to privacy? Does privacy receive as much protection as do other rights?
• How have advances in technology posed challenges to individuals’ privacy rights?