Module 5 Civil Liberties

Overview

Module 5 for the fifth week of the course includes the following page giving an overview of the Module’s content and the week’s activities:

Civil Liberties

This week  we will again focus on just one chapter – Civil Liberties (Chapter 4).

“Liberty” is something we’ve heard often as people began to complain that their supposed constitutional “freedoms” were being deprived by mask-wearing, stay home orders, vaccine mandates and other restrictions imposed by government to protect public health from the coronavirus pandemic. But what liberties does the Constitution in fact guarantee?

[insert image of cartoon panels for each Bill of Rights Amendment]

LIMITS ON THE FEDERAL GOVERNMENT. FIRST, note that “Civil liberties” and “civil rights” are terms that are sometimes used interchangeably, but they are not the same. (We covered civil rights last week, focusing on protections afforded people denied equal treatment under the law, derived primarily from the Equal Protection Clause of the Fourteenth Amendment.) Civil liberties are rights found in the Bill of Rights, the first ten amendments to the US Constitution, and other inherent freedoms not explicitly mentioned there. The first ten amendments are focused on personal freedoms (i.e., liberties) that the government is obligated to protect. Protect from whom? From the government itself! Yes, the government is obligated by these amendments to protect citizens (and non-citizens) from the government’s own actions. Some might say it’s like the fox guarding the hen house! These are limits placed on government power by the governed themselves, something that typically happens only in constitutional, democratic forms of government.

JUDICIAL REVIEW PROTECTS FREEDOMS. And that is where the judicial branch (Article III, Constitution) comes into play. With the power of judicial review, the courts are a co-equal branch of government that can “check” (limit) the powers of the other two branches, protecting liberties that otherwise would be left to the very agencies of government  that are infringing them! It’s a bit of a wonder the Framers (or the Antifederalists, at least) didn’t think of this and make the Court’s power of judicial review explicit; but we have Chief Justice John Marshall (a Federalist!) to thank for putting the Court on the path to protection of these liberties throughout the years. (See Marbury v. Madison – an important case that we will examine in a later chapter.)

This week we will explore:

• what are these various freedoms;
• how has their scope and meaning evolved over the years;
• who is protected and under what circumstances;
• from which government are these liberties being protected; and
• what remedies are provided for violations of these freedoms.

WHAT AND WHO IS PROTECTED? You are probably familiar with many of these liberties: freedom of speech, freedom of the press (media), freedom of religion, right to assemble and petition the government about grievances, right to bear arms, right to be free from unreasonable searches and seizures, right not to be a witness against oneself (self-incrimination), right to counsel and a jury trial (in certain cases), the right to be free from cruel and unusual punishment, and the right to due process of law . These are expressly protected in the Bill of Rights. But the courts have found other implied freedoms connected to the expressed ones – e.g., right to privacy – in the Bill of Rights, and in the Fourteenth Amendment (one of the three post-Civil War Amendments).

But even these freedoms are not unlimited, and courts have struggled to find the right balance between the individual’s right to exercise these freedoms and the government’s obligation to provide security to society. That balance has evolved over time and likely will continue to evolve as society changes and the courts adapt to changing circumstances.

As far as “who” is entitled to protection of these freedoms from government abuse, the various amendments use the words “people”, “person”, “owner”, “accused”, but not “citizen” (until the Fourteenth Amendment, but even then reverts to “person” when describing protected rights, which are generally considered “civil rights”, not civil liberties).

[insert photos of 1) “colored only” sign and 2) anti-Jim Crow protesters in Brooklyn NY]

LIMITS ON STATE GOVERNMENTS ADDED. These freedoms were originally interpreted by the courts as protections against abuses by the Federal government only, not state governments. And this makes sense as the original first 10 amendments were intended to offer protection against this new government being formed – presumably each state would protect its own citizens against abuses of their freedoms by state government. But in 1868, the Fourteenth Amendment expressly restricted states, as well. And for good reason – southern states were not expected to willingly allow the newly freed slaves to become equal members of society with white southerners. And even with the 14th Amendment the states still used Jim Crow laws to deny Black people equal rights.) Nonetheless, it was not until 1897 that the freedoms in the Bill of Rights would be officially recognized by the Supreme Court as applicable to the states — a trend that would continue through to the 1960s.

FREEDOMS AFFIRMED BY SUPREME COURT. Among the most famous cases declaring the scope of these freedoms are: Tinker vs. Des Moines (symbolic speech); Lemon v. Kurtzman  and Wisconsin v. Yoder (religion in public schools); Griswold v. Connecticut, Roe v. Wade and Lawrence v. Texas (privacy rights); Miranda v. Arizona (right against self-incrimination); Gideon v. Wainwright (right to counsel); Miller v. California (obscenity and free speech); District of Columbia v. Heller and McDonald v. City of Chicago (gun rights); and Citizens United v. FEC (corporations, money and political speech). There are many, many more cases that detail the scope of these rights, and many more likely to come as people bring court challenges against government action.

[insert cartoon image by Sack of Star Tribune – pro-and anti-masking characters]

COVID RESTRICTIONS AND THE COURTS. During the worst of the pandemic, emergency orders of state governors restricted travel and attending church services, required masks be worn in public areas, closed non-essential businesses and schools, mandated vaccination as a condition of employment or school attendance, and imposed other limitations. Were these a denial of civil liberties protected by the Constitution?  Or are they reasonable restrictions necessary to fulfill the government’s obligation to protect pubic health (especially under states’ police power)? The Supreme Court ruled in multiple cases that some Covid restrictions on religious gatherings in New York and California were too restrictive of First Amendment religious freedoms – see Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. __ (Nov. 25, 2020); Tandon v. Newsom, 593 U.S. __ (April 9, 2021), and the Court ruled that President Biden’s mandate that all businesses employing more than 100 workers require their workers to be vaccinated was unlawful, National Federation of Independent Business v. Department of Labor, No. 21A244 (Jan. 13, 2022), yet allowed the government vaccine mandate as applied to health care workers in facilities receiving federal Medicare or Medicaid funds, Biden v. Missouri, No. 21A240 (Jan. 13, 2022).

Classroom Lessons and Activities

Additional Resources

Other resources and documents used in class for this Module, including PowerPoint lecture slides, are in the Appendix.