By Jennifer Nicoll Victor, Ph.D., George Mason University
Civil liberties are a core value of American culture. The individuals have the right and freedom to live their lives as they choose, independent from government control. Read to know about the rights an American citizen has.
Civil Liberties and Civil Rights
Civil liberties and civil rights are core features of American political institutions, but they are not the same thing.
A civil liberty is a specific individual right that is protected from government infringement under the US Constitution . One can think of it as a freedom from government power. A civil right, on the other hand, is the right of a group of people to be treated equally by the government. One can think of this as protection by government.
Learn more about the creation of the Constitution.
Amendments in the Bill of Rights
American civil liberty protections are found in the Bill of Rights. It’s what is called the collection of the first 10 Amendments to the Constitution.
The First Amendment includes the inability of government to restrict freedom of religion, speech, press, assembly, and petition. The Second Amendment prohibits the government from infringing upon the right to keep and bear arms. The Third Amendment guarantees that the government will not require people to provide housing for US soldiers in their own homes without first making a law to do so.
The Fourth Amendment protects against unreasonable search and seizure, and the means for obtaining a warrant when a search is needed. The Fifth Amendment concerns protections from being tried twice for the same crime, from testifying against oneself, and includes the right to due process of law. The Sixth Amendment includes the right to a speedy trial and legal counsel.
The Seventh Amendment includes the right to a jury trial. The Eighth Amendment includes protection from excessive bail and fines, as well as from cruel and unusual punishment. The Ninth Amendment says the Constitution cannot be used to deny people rights, rather it guarantees them. And the Tenth Amendment,more or less, says that rights not guaranteed in the Constitution are within the power of states.
This is a transcript from the video series Understanding the US Government. Watch it now, Wondrium.
The 14th Amendment
It wasn’t until the 14th Amendment was adopted in 1868 that the Constitution included a mechanism that could guarantee civil liberties at the state level as well as the federal level.
The due process clauses in the Fifth and 14th Amendments have worked together to be interpreted by the judiciary to protect civil liberties at the state level, but not all at once. Civil liberty protections at the state level have been guaranteed through a process known as selective incorporation.
Selective Incorporation
Selective incorporation refers to the process of individual civil liberties being guaranteed at the state level one at a time through a series of Supreme Court decisions.
For example, the right to freedom of speech was not guaranteed at the state level until 1925 when the Supreme Court decided a case called Gitlow v. New York in which the court used the Due Process Clause of the 14th Amendment as the legal basis to apply freedom of speech protections for citizens from their state governments.
The freedom of the press occurred in 1931 in a case called Near v. Minnesota. For the free exercise of religion, it happened in 1934 in a case called Hamilton v. Regents of The University of California.
In 1961, the Supreme Court decided a landmark case called Mapp v. Ohio that applied the Fourth Amendment protections against unreasonable search and seizure at the state level.
Other selective incorporation landmark cases include: Gideon v. Wainwright in 1963 that guarantees the Sixth Amendment right to counsel; the 1966 decision Miranda v. Arizona that protects against self-incrimination; and the 1965 case Griswold v. Connecticut that recognized a right to privacy found in the third, fourth, and fifth amendments.
And it wasn’t until 2010 that the right to keep and bear arms found in the Second Amendment was incorporated as a civil liberty that is guaranteed at both the national and the state level in a case called McDonald v. Chicago.
Learn more about the framework of US federalism.
The US Court System
For such an important document, the US Constitution is pretty short and leaves a lot of room for interpretation and growth by the American legal system and that’s by design. The court system is designed to interpret laws and the Constitution to help build a body of legal rulings.
Over time, these rulings have become a part of American law and its system of justice. By issuing rulings in cases, the courts can expand upon or constrain existing laws.
So, one cannot hope to understand American rights or laws without referring to the body of cases that the courts have decided.
It’s important to remember, however, that courts do not have the power to begin a legal process or to make a ruling on whatever they may seek to speak on. Only legislatures have the power to create new laws.
Instead, courts rule on the legal questions that are brought before them. The details and confines of those cases, and the legal opinions that courts have provided on them, determine how American law is shaped and how it grows over time.
Learn more about how a bill becomes a law.
The Lemon Test
The first serious attempt at establishing a legal rule for religious establishment came in a Supreme Court case in 1971 known as Lemon v. Kurtzman.
As a part of their ruling, the Supreme Court attempted to establish a test that became known as the ‘Lemon test’, which would allow any legal observer to determine whether or not a law violated the constitutional prohibition on establishment of religion.
The Lemon test has three parts. First, the statute is supposed to have a ‘secular legislative purpose’, meaning that it denotes attitudes that are free from religion. Second, the statute’s primary effect is supposed to be one that neither advances nor inhibits religion. And, third, the statute must not foster an ‘excessive government entanglement with religion’.
If any of these three conditions were violated, then the policy or statute would be said to fail to satisfy the Lemon test.
However, the test was too subjective and led to many conflicting judgments. By the 1990s, the Lemon test was widely criticized, although it has not been formally overruled yet.
Common Questions about the Bill of Rights
Selective incorporation refers to the process of individual civil liberties being guaranteed at the state level, one at a time, through a series of Supreme Court decisions.
The following are the three parts of the Lemon test: first, the statute is supposed to have a ‘secular legislative purpose’, meaning that it denotes attitudes that are free from religion; second, the statute’s primary effect is supposed to be one that neither advances nor inhibits religion; and, third, the statute must not foster an ‘excessive government entanglement with religion’.
A civil liberty is a specific individual right that is protected from government infringement under the US Constitution. A civil right, on the other hand, is the right of a group of people to be treated equally by the government.
