Civil Rights and Civil Liberties
| I | INTRODUCTION |
Civil Rights and Civil
Liberties, political and social concepts referring to guarantees of
freedom, justice, and equality that a state may make to its citizens. Although
the terms have no precise meaning in law and are sometimes used interchangeably,
distinctions may be made. Civil rights is used to imply that the state
has a positive role in ensuring all citizens equal protection under law and
equal opportunity to exercise the privileges of citizenship and otherwise to
participate fully in national life, regardless of race, religion, sex, or other
characteristics unrelated to the worth of the individual. Civil liberties
is used to refer to guarantees of freedom of speech, press, or religion; to due
process of law; and to other limitations on the power of the state to restrain
or dictate the actions of individuals. The two concepts of equality and liberty
are overlapping and interacting; equality implies the ordering of liberty within
society so that the freedom of one person does not infringe on the rights of
others, just as liberty implies the right to act in ways permitted to
others.
| II | HISTORY |
The concept that human beings have inalienable
rights and liberties that cannot justly be violated by others or by the state is
linked to the history of democracy. It was first expressed by the philosophers
of ancient Greece. Socrates, for example, chose to die rather than renounce the
right to speak his mind in the search for wisdom. Somewhat later the Stoic
philosophers formulated explicitly the doctrine of the rights of the individual
(see Stoicism). Traces of libertarian doctrine appear in the Bible and in
the writings of the Roman statesman Marcus Cicero and the Greek essayist
Plutarch. Such ideas, however, did not gain a permanent place in the political
structure of the Roman Empire and all but disappeared during medieval
times.
| A | Early Development |
Individual freedom can survive only under a
system of law by which both the sovereign and the governed are bound. Such a
system of fundamental laws, whether written or embodied in tradition, is known
as a constitution. The idea of government limited by law received effective
expression for the first time in the Magna Carta (1215), which checked the power
of the English king. The Magna Carta did not stem from democratic or egalitarian
beliefs; rather, it was a treaty between king and nobility that defined their
relationship and laid the basis for the concept that the ruler was subject to
the law rather than above it. The development of constitutional government was
slowed by the persistence of the ideas of absolutism, the belief that all
political power should be in the hands of one individual, and divine
right, which held that kings derived their power from—and were
accountable only to—God. These beliefs were widely held throughout Europe until
the 18th century. The notion that the people have the right to be asked to
consent to acts of government did not arrive without a protracted struggle. The
reigns of the Tudor and Stuart monarchs in England were marked by fierce
conflicts between the Crown and Parliament.
On the European continent the struggle
between authoritarian and libertarian principles developed around religious
rather than secular issues. During the Reformation, freedom of religious belief
and practice was a primary concern. Tolerance was rare; as late as 1612, for
instance, members of the Unitarian sect were burned as heretics in England
(see Unitarianism). Not until the end of the 18th century did the ideals
of religious toleration become firmly established in Western civilization.
As a result of the English, American, and
French revolutions, libertarian ideals were embodied in the structure of
national governments. In England, the struggle between Parliament and the
absolutist Stuart monarchs culminated in the so-called Glorious Revolution of
1688. King James II was expelled, and the new king, William III, gave royal
assent (1689) to the Declaration of Rights (English Bill of Rights), which
guaranteed constitutional government. Subsequently, the monarch’s prerogatives
were limited by statute and custom. The idea of a constitutional system is
described in the writings of the English philosopher John Locke, which
profoundly influenced the leaders of the American colonies.
The 17th century was marked also by the
growth of individual freedom in Great Britain. In the common law courts, for
example, the judges became more concerned for the rights of those accused of
crime, and procedural safeguards were established.
| B | Spread of Civil Liberties |
British colonists brought the concepts of
limited government and individual freedom to the New World. The early laws of
Virginia, Massachusetts, and other colonies reflected interest in the reform of
criminal procedure that was emerging in Great Britain. A notable event in the
history of civil liberties was the successful defense (1735) in New York by the
Philadelphia lawyer Andrew Hamilton of the printer John Peter Zenger, who had
been charged with seditious libel for criticisms of the colonial government in
his publication the New York Weekly Journal. Hamilton established the
principle that the government may not punish truthful publications of matters of
public concern. See The Trial of John Peter Zenger.
The events leading to the American and
French revolutions inspired writings that laid the foundations for modern ideas
of civil liberties by such authors as the French philosophers Voltaire and Jean
Jacques Rousseau, the British reformer John Wilkes and the philosopher Jeremy
Bentham, the Anglo-American writer Thomas Paine, and the American statesmen
Thomas Jefferson and James Madison. The Declaration of the Rights of Man and of
the Citizen in France and the Bill of Rights of the Constitution of the United
States formally established libertarian principles as a foundation of modern
democracy.
Although civil liberties are often
considered an integral part of democratic government, the principles of limited
government and personal freedom were developed in England at a time when
political power was held by an aristocratic upper class. Similarly, in the
American colonies, many founding fathers did not favor democracy in the modern
sense. Indeed, the framers of the U.S. Constitution provided a method of
electing the nation’s president that avoids a direct popular vote. Conversely,
history offers numerous examples of countries in which political power is
formally vested in representative assemblies, but enforcement of law is
arbitrary or despotic, and minorities have few safeguards against the tyranny of
majorities.
| III | CIVIL RIGHTS AND CIVIL LIBERTIES IN THE UNITED STATES |
The civil rights and liberties of U.S.
citizens are largely embodied in the Bill of Rights (the first ten amendments to
the Constitution) and in similar provisions in state constitutions. The First
Amendment guarantees freedom of speech, press, assembly, and religious exercise
as well as separation of church and state (see Speech, Freedom of; Press,
Freedom of the; Religious Liberty). The Fourth Amendment protects the privacy
and security of the home and personal effects and prohibits unreasonable
searches and seizures. The Fifth through Eighth amendments protect persons
accused of crime; they guarantee, for example, the right to trial by jury, the
right to confront hostile witnesses and to have legal counsel, and the privilege
of not testifying against oneself. The Fifth Amendment also contains the general
guarantee that no one shall be deprived of life, liberty, or property without
due process of law (see Due Process of Law). Originally these amendments
were binding only on the federal government. However, decisions by the Supreme
Court of the United States have established that the Due Process Clause of the
14th Amendment (ratified in 1868) applies many of the guarantees in the Bill of
Rights to actions by state and local governments.
| A | Religious Freedom |
Although religious freedom has not
generally been curtailed in the United States, Roman Catholics, Jews, and
members of such unconventional Protestant groups as the Oneida Community and the
Church of Jesus Christ of Latter-day Saints have historically been discriminated
against and sometimes have even been persecuted, although today overt
discrimination has almost vanished.
The federal Civil Rights Act of 1964, as
well as many state and local laws, prohibits religious discrimination. The
government recognizes the right of religious pacifists to refuse to bear arms,
even in time of war. The Supreme Court has ruled that this right, known as
conscientious objection, need not be based only on religious training or belief
in a supreme being. The Court has also upheld the right of Jehovah’s Witnesses
to refuse to salute the flag because of religious objections.
Applying the principle of separation of
church and state (see Church and State), the Court has struck down many
attempts to use public funds to finance religious schools; at times, however,
the Court has permitted the use of public funds for buildings and other
nonsectarian programs of religious schools. In the 1960s the Court ruled that
state-composed prayers and Bible reading in public schools violated the
Constitution, a policy to which the Court has adhered. In 2000, for example, it
struck down school-sponsored prayers at public high school football games.
Efforts to reverse these rulings were unsuccessful, but in recent years the
Court has been more permissive in allowing government aid to religion. For
example, in certain cases it has upheld a community’s right to place religious
displays on public property, and in 2002 it upheld a school voucher program in
which public funds were largely to pay for education at religious private
schools. At the same time, however, the Court has refused to require the
government to carve out religious exemptions from generally applicable
laws.
| B | Freedom of Speech, Press, and Assembly |
Civil liberties have been most endangered
during periods of national emergency. In 1798 hostility toward revolutionary
France led Congress to enact the Alien and Sedition Acts, which stripped aliens
of nearly all civil rights and threatened freedom of speech and the press by
prohibiting “false, scandalous and malicious writing” against the government,
Congress, or the president. The constitutionality of these acts was never
tested, but they soon expired, were not reenacted, and are now generally agreed
to have been unconstitutional.
During the American Civil War (1861-1865),
President Abraham Lincoln gave his principal military officers wide and
unreviewed authority to arrest civilians for disloyal speech or acts. After
World War I (1914-1918), fear of the newly established Communist government in
the Soviet Union led to the harassment of suspected subversives by the U.S.
Department of Justice.
The rise of National Socialism in Germany,
the spread of communism, and the Great Depression of the 1930s all combined to
arouse concern for the internal security of the United States. The federal
legislative and executive power to deal with disloyal acts was enlarged. In 1940
Congress passed the Smith Act, which outlawed the advocacy of force and violence
as a means of bringing about changes in government. In 1950 Congress adopted the
Internal Security Act, which established a new federal agency for identifying
and suppressing so-called subversive persons and organizations. Congress
virtually outlawed the Communist Party in 1954, although membership in the party
was not expressly made criminal. These statutes were upheld by the Supreme
Court, but eventually were limited in scope and fell into disuse during the
1960s. In 1969 the Court adopted a constitutional standard that protects
political speech unless “directed to inciting … imminent lawless action” and was
likely to produce such action.
In the 1950s congressional and state
investigating committees conducted widely publicized hearings at which thousands
of individuals were questioned concerning their political activities and
associations, if any, with the Communist Party. Among the legislators
prominently identified with these investigations were Senators Patrick McCarran
of Nevada and Joseph McCarthy of Wisconsin. The Supreme Court subsequently
limited such proceedings.
New problems emerged during the 1960s and
1970s. Demonstrations by opponents of racial discrimination and the Vietnam War
(1959-1975), and government attempts to restrict these demonstrations, led the
Supreme Court to specify where, when, and how cities and states may limit the
use of streets, parks, and other public places for purposes of protest. At the
same time, certain symbolic forms of expression were employed by the protesters,
leading to court rulings upholding criminal punishment for the burning of draft
cards but reversing convictions for the mutilation of the American flag as a
form of expression. The Court held in 1989 and 1990 that neither the federal
government nor the states could single out the burning of the American flag for
criminal penalties.
The attempted publication in 1971 by the
New York Times and the Washington Post of the so-called Pentagon
Papers led to a major Supreme Court decision that prior restraints on
publication of national security material could not be enjoined unless such
material “will surely result in direct, immediate and irreparable damage to our
nation or its people.” See Censorship.
In 1964 the Supreme Court ruled for the
first time that, to give the press breathing room, even false statements about
public officials are protected by the First Amendment unless uttered with
“actual malice”; that is, with knowledge of their falsehood or with reckless
disregard of the facts. Later cases refined this decision but left to the
discretion of the states whether to allow defamation actions brought by persons
who are neither public officials nor public figures.
The Supreme Court also elaborated its 1957
ruling that obscenity is not constitutionally protected speech. Determining the
content of obscenity has been difficult; in 1973 it was defined as speech that,
taken as a whole, appeals to the prurient interest, is patently offensive in
depicting sexual conduct, and lacks serious literary, political, or scientific
value. This vague definition has led to numerous lawsuits involving explicit
sexual material. Conservative religious groups and some feminists have attempted
to restrict the distribution of sexually explicit material that is not obscene.
The movement achieved limited success, but civil libertarians have led efforts
to combat this form of censorship. In 1997 the Court struck down a federal law
that banned nonobscene but sexually explicit material on the Internet. The Court
reasoned that Congress may not prohibit circulation to adults of
constitutionally protected speech simply because children might see it.
One of the most controversial First
Amendment cases of the late 1970s did not reach the Supreme Court. When a U.S.
Nazi group sought to march in Skokie, Illinois, the home of many Jewish
survivors of German concentration camps, emotions were aroused, and the city
enacted laws designed to prevent the march. Both federal and state courts upheld
the right of this Nazi group, which was represented by the American Civil
Liberties Union, to express itself peaceably.
The Court has broadened constitutional
protection for many other forms of speech, including commercial speech. In the
1990s, it struck down several attempts to ban advertising, including liquor
advertising, said to be harmful.
| C | Criminal Trials and Due Process of Law |
Thousands of Supreme Court rulings have
been concerned with the rights of persons accused of crimes. Defendants in state
as well as federal criminal cases are assured that they cannot be imprisoned for
an offense unless represented by a lawyer, or counsel; if a defendant is
impoverished, such counsel must be supplied by the government. Defendants must
be warned that they may not be questioned until counsel is provided, and
defendants may not be convicted on the basis of confessions obtained by
coercion. The Court also ruled that prosecutors may not exclude people from
juries on grounds of race or sex.
The Fifth Amendment privilege against
self-incrimination was the most controversial constitutional protection during
the 1950s and 1960s, when it was invoked by, among others, individuals accused
of subversive activities and participation in organized crime. The Court’s
interpretation of the Fourth Amendment has also generated controversy; its
provisions protecting the security of the person and of dwellings have been
cited in disallowing convictions based on evidence obtained by the police
illegally. The Court in the 1970s began to narrow its interpretation, a process
that has continued into the 21st century as the public has come to favor
crime-control measures over the rights of defendants. This climate of opinion
has also led to more frequent use of capital punishment, although the Court has
limited the crimes for which death may be the punishment. The Court has also
prescribed procedures that must be followed before the death penalty may be
given. At the same time, it has limited the right of prisoners to appeal their
convictions on constitutional grounds.
| C1 | Criminal Trials and Due Process during the ‘War on Terror’ |
Following the September 11, 2001,
terrorist attacks on the World Trade Center and the Pentagon by international
terrorists, President George W. Bush invoked his constitutional authority as
commander-in-chief and signed a military order allowing the government to detain
and conduct military trials of noncitizens suspected of terrorism. The U.S.
military proceeded to detain as “unlawful enemy combatants” hundreds of foreign
nationals who were captured during hostilities in Afghanistan and elsewhere. The
government held them indefinitely at the U.S. naval base at Guantánamo Bay,
Cuba, without bringing criminal charges or allowing them legal counsel. The
military also detained two American citizens as unlawful enemy combatants.
In 2004 the Supreme Court considered
the constitutionality of indefinite detentions of enemy combatants. In the case
Hamdi v. Rumsfeld, the Court upheld the authority of the president
of the United States to classify U.S. citizens as unlawful enemy combatants and
to detain them without charges. However, the Court ruled that such detainees are
entitled to challenge the government’s case against them before an impartial
judge. In addition, detainees have the right to an attorney. In Rasul v.
Bush, the Court ruled that foreign detainees held at Guantánamo Bay have
the right to challenge their detention in U.S. courts.
In June 2006 the Supreme Court
addressed the issue of military trials for accused enemy combatants. In
Hamdan v. Rumsfeld the Court ruled that proposed military
tribunals for alleged unlawful combatants violated federal statute and the
Uniform Code of Military Justice (UCMJ), in part because the UCMJ incorporates
Common Article 3 of the Geneva Conventions—most importantly its requirement of
trials before “regularly constituted courts.” The Court found that the Bush
administration’s proposed military tribunals were illegal because, unlike normal
court-martial proceedings, trials in these commissions allowed for evidence
obtained by coercion and hearsay, and because the accused were not allowed to be
present at all times during the trial or to see all the evidence against them.
In September 2006 the U.S. Congress
responded to the Supreme Court’s ruling by passing the Military Commissions Act
of 2006. The new law reflected Congress’s insistence that torture be prohibited
but also permitted under certain conditions the admission of evidence obtained
by coercion. The new law also denied the right of habeas corpus to noncitizens
designated as unlawful enemy combatants by the president or secretary of
defense. The law affirmed the president's power to hold people as enemy
combatants based on a wide range of conduct, some of it falling well short of
actual military hostilities.
| D | Privacy |
A constitutional right of privacy, drawn
from the Bill of Rights provisions protecting the security of home and person,
as well as freedom of association, was first recognized by the Supreme Court in
1965. In Griswold v. Connecticut the Court struck down a state law
that prohibited the use of contraceptives by a married couple. The decision was
later extended to protect the rights of single persons and, in the Roe
v. Wade decision of 1973, the right of women to abort an unwanted
pregnancy. In 1980, however, the Court refused to apply this ruling to require
the federal government to bear the cost of abortions for women who could not
afford them. Efforts to reverse Roe v. Wade judicially or by
constitutional amendment were unsuccessful. A divided Supreme Court in 1992
reaffirmed the core holding of Roe while further limiting its scope.
Other test cases of rights of privacy
during this period concerned wiretapping and eavesdropping on private
conversations, widespread dissemination of personal information through
computers, access to information in government files, and the use without
consent of pictures and names of celebrities. Although the courts have given
some protection to privacy, the limitations have been relatively minor. For
example, the Supreme Court ruled in 2000 that Congress could prohibit states
from selling personal information on state drivers’ licenses and motor-vehicle
registration records. Additional protection has resulted from legislative
enactments such as the federal Privacy Act of 1974 and various state statutes.
The Patriot Act, antiterrorism legislation
passed in the aftermath of the September 11 attacks, significantly expanded the
federal government’s surveillance powers. Federal agents were given greater
authority to wiretap telephones, to monitor e-mail and Internet use, and to
secretly search a suspect’s home or office. These powers were further widened by
the Intelligence Reform and Terrorism Prevention Act of 2004, which authorized
the sharing of personal information from public and private databases. Civil
liberties advocates warned that this provision had the potential to lead to
unchecked data surveillance, but supporters of the law said adequate safeguards
were in place to protect privacy. See also Surveillance, Electronic.
Civil liberties advocates were again
concerned when it was revealed in December 2005 that President George W. Bush
had signed a presidential order in 2002 authorizing the National Security Agency
to eavesdrop without judicial warrants on the overseas electronic communications
of U.S. citizens and foreign nationals in the United States. Many legal experts
believed the order violated the 1978 Foreign Intelligence Surveillance Act
(FISA), which set up a special court to hear government requests for domestic
wiretaps of U.S. citizens or foreign nationals in investigations involving
espionage. Although the Patriot Act further amended FISA by lowering the
standard for court-approved eavesdropping to include possible terrorists linked
to foreign intelligence services, it still required approval by the FISA special
court for wiretapping. FISA was enacted in response to abuses by the Federal
Bureau of Investigation and the Central Intelligence Agency, which were found to
have wiretapped individuals and organizations engaged in civil rights and
anti-Vietnam War protests and other First Amendment-protected activities during
the 1960s and 1970s. To prevent abuses, FISA prohibited any electronic
surveillance not authorized by the special court.
In hearings before the U.S. Congress,
Attorney General Alberto Gonzales aggressively countered the claim that the NSA
wiretapping was illegal, citing Bush’s authority as commander in chief. Gonzales
said the program’s legality was also established by a congressional resolution,
the 2001 Authorization for Use of Military Force, which authorized the president
to use “all necessary and appropriate force” to prevent future acts of
terrorism. Many members of Congress, however, said the resolution had nothing to
do with warrantless electronic surveillance. The conflict raised serious
questions not only about privacy but also about the limits of presidential power
and the system of checks and balances during wartime. See also Signing
Statement.
| E | Minority Rights |
| E1 | Civil Rights for Blacks |
The most critical civil rights issue in
the United States has concerned the status of its black minority. After the
Civil War the former slaves’ status as free people entitled to the rights of
citizenship was established by the 13th and 14th Amendments, ratified in 1865
and 1868, respectively. The 15th Amendment, ratified in 1870, prohibited race,
color, or previous condition of servitude as grounds for denying or abridging
the rights of citizens to vote. In addition to these constitutional provisions,
Congress enacted several statutes defining civil rights more particularly. The
Supreme Court, however, held several of these unconstitutional, including an
1875 act prohibiting racial discrimination by innkeepers, public transportation
providers, and places of amusement.
During the period of Reconstruction the
Republican-dominated federal government maintained troops in the southern
states. Blacks voted and held political offices, including seats in Congress.
Two blacks became senators, and 20 were elected to the House of Representatives
during this era. The Reconstruction era aroused the bitter opposition of most
southern whites. The period came to an end in 1877, when a political compromise
between the Republican Party and southern leaders of the Democratic Party led to
the withdrawal of federal troops from the South.
In the last two decades of the 19th
century, blacks in the South were disfranchised and stripped of other rights
through discriminatory legislation and unlawful violence. Separate facilities
for whites and blacks became a basic rule in southern society. In Plessy
v. Ferguson, an 1896 case involving the segregation of
railroad passengers, the Supreme Court held that “separate but equal” public
facilities did not violate the Constitution and refused to acknowledge that the
separate facilities in use were not in fact equal.
During the first half of the 20th
century, racial exclusion, either overt or covert, was practiced in most areas
of American life. During World War II (1939-1945) black leaders such as A.
Philip Randolph protested segregation in military service, and some reforms were
introduced. In 1948 President Harry S. Truman signed an executive order
integrating the armed forces. The 1954 Supreme Court decision in Brown
v. Board of Education represented a turning point; reversing the 1896
“separate but equal” ruling, the Court held that compulsory segregation in
public schools denied black children equal protection under the law. It later
directed, ineffectually, that desegregated educational facilities be furnished
“with all deliberate speed.” Subsequent decisions outlawed racial exclusion or
discrimination in all government facilities. The Court also upheld federal laws
barring discrimination in interstate commerce, such as public transportation. A
state law against racial intermarriage was also ruled invalid (see
Miscegenation).
School desegregation was resisted in
the South. Federal determination to enforce the court decision was demonstrated
in Little Rock, Arkansas, in 1957, when President Dwight Eisenhower dispatched
troops to secure admission of black students into a “white” high school.
Nevertheless, in the Deep South progress toward integration was negligible in
the years following the Supreme Court decision. In 1966, for example, the
overwhelming majority of southern schools remained segregated. By 1974, however,
some 44 percent of black students in the South attended integrated schools, and
by the early 1980s the number was approximately 80 percent.
In the North and West many black
students also attended segregated schools. Such segregation was considered
unconstitutional only where it could be proven to have originated in unlawful
state action. Public controversy, sometimes violent, continued over the issue of
transporting children in school buses long distances from their homes in order
to achieve integration. Busing had become necessary because of the concentration
of minority populations in the central areas of many cities. The Supreme Court
dealt a blow to such busing in July 1974 by, in effect, barring it across
school-district lines except on a voluntary basis.
Civil rights for blacks became a major
national political issue in the 1950s. The first federal civil rights law since
the Reconstruction period was enacted in 1957. It called for the establishment
of a U.S. Commission on Civil Rights and authorized the U.S. attorney general to
enforce voting rights. In 1960 this legislation was strengthened, and in 1964 a
more sweeping civil rights bill outlawed racial discrimination in public
accommodations and by employers, unions, and voting registrars. Deciding that
normal judicial procedures were too slow in assuring minority registration and
voting, Congress passed a voting rights bill in 1965. The law suspended (and
amendments later banned) use of literacy or other voter-qualification tests that
had sometimes served to keep blacks off voting lists, authorized appointment of
federal voting examiners in areas not meeting certain voter-participation
requirements, and provided for federal court suits to bar discriminatory poll
taxes, which were ended by a Supreme Court decision and the 24th Amendment
(ratified in 1964). In the aftermath of the assassination of the civil rights
leader Martin Luther King, Jr., Congress in 1968 prohibited racial
discrimination in federally financed housing, but later efforts to strengthen
the law failed. See also Segregation in the United States.
| E2 | Affirmative Action |
An important constitutional issue that
has caused public controversy is whether, and to what degree, public and private
institutions may use affirmative action to help members of minority groups
obtain better employment or schooling. In the Regents of the University of
California v. Bakke case in 1978, the Supreme Court held that it was
unconstitutional for the University of California Medical School at Davis to set
an absolute quota for the admission of minority candidates, but said that race
can be taken into account for the setting of numerical goals that were not
disguised quotas. The Court later ruled that racial preferences by a private
corporation designed to remedy prior discrimination did not violate the Civil
Rights Act.
A changing political climate in the
1980s and 1990s, however, led to the repeal of many affirmative action programs.
In 1995 the Court said that all public affirmative action plans must be strictly
scrutinized. The Court hinted strongly that only those plans designed to remedy
past acts of discrimination would survive. Furthermore, many lower courts began
to openly reject the finding in the Bakke case that colleges and
universities were permitted to seek racial diversity among their student bodies
by giving special consideration to minority applicants.
Nevertheless, in the first major
decision on affirmative action since the Bakke case in 1978, the Supreme
Court in 2003 reaffirmed racial diversity as a goal of college and university
admissions programs. The case involved the University of Michigan Law School’s
admission program, which considered race, among other qualities, in evaluating
each applicant. In a 5 to 4 decision the Supreme Court upheld the law school’s
affirmative action program, finding that there was a “compelling public
interest” in achieving diversity as long as quotas were not used. The decision
in Grutter v. Bollinger came despite briefs filed against
affirmative action by the administration of President George W. Bush. The
decision did not rescind state laws that forbid affirmative action programs,
such as those passed by popular initiative in California and Washington. Civil
rights organizations hailed the ruling as a historic victory. Opponents of the
decision took note of the Court’s opinion that affirmative action should only be
necessary for another 25 years.
| E3 | Civil Rights for Hispanics and Asian Americans |
Civil rights have also been denied to
Hispanic Americans, particularly Puerto Ricans in the East and Mexican Americans
in the Southwest. The problem has followed traditional paths, as rights have
been denied in employment, housing, and access to the judicial system.
Asian Americans also have suffered
deprivations of civil rights since at least the late 19th century. The forced
removal and incarceration of persons of Japanese descent from the West Coast
during World War II, which was upheld by the Supreme Court, was a major
violation of civil liberties for which Congress apologized and provided
reparations in 1990 (see Japanese American Internment). Asians faced low
immigration quotas before the laws were amended in 1965, 1968, and 1977, and in
parts of the United States, Asian Americans have been denied equal rights in
housing and employment.
| F | Rights of Women |
Historically, American women have been
denied their civil rights in suffrage (they were unable to vote until a 1920
constitutional amendment), employment, and other areas. In the 1960s women
organized to demand legal equality with men and, after passage of the Civil
Rights Act of 1964, made many gains, especially in employment. During the 1970s
efforts continued to change not only unfair practices but also outmoded
attitudes toward the role of women in society. In 1972 Congress passed the Equal
Rights Amendment (ERA) to the Constitution and submitted it to the states for
ratification. The ERA, however, which was designed to eliminate legal
discrimination against women, failed to win the approval of a sufficient number
of states; by the June 1982 deadline only 35 of the required 38 states had
ratified the amendment. Although the ERA failed, beginning in the 1970s the
Supreme Court ruled that laws treating men and women differently were
constitutionally suspect. In the landmark case United States v.
Virginia in 1996, the Court said that sex discrimination is
unconstitutional unless the state can advance an “exceedingly persuasive
justification.”
Women have continued to make gains in
certain trades and professions, including financial services, medicine, and law,
but problems remain in many areas. The Civil Rights Act of 1991 extended to
women victims of job bias the right to sue their employers for monetary damages.
The act also established a commission to probe the “glass ceiling” that has
prevented women and other minorities from advancing to top management. See
Women’s Rights.
| G | Rights of Other Minorities |
The struggle for civil rights has not
been confined to blacks, Hispanic Americans, Asian Americans, and women. Native
Americans for decades were forcibly deprived of their lands and denied civil
rights. In 1968 Congress enacted the Indian Civil Rights Act, and the federal
courts have heard a number of suits designed to restore to Native American
tribes rights to their ancestral lands.
The elderly have also been deprived of
their civil rights, especially in employment and to some degree in housing.
Federal and state laws have been only partially successful in solving this
problem. Former prisoners and mental patients have suffered legal disabilities
after their confinement ended, and resident aliens are sometimes denied equal
employment opportunities.
Homosexuals, historically, have not had
full civil rights because of social and sexual taboos. The number of judicial
decisions and laws enacted at the local level to protect gay men and women from
discrimination has increased, but the degree of prejudice was heightened in the
1980s by the concern about Acquired Immune Deficiency Syndrome (AIDS). In 1986
the Supreme Court ruled that the Constitution does not bar criminal prosecution
for private homosexual relations between consenting adults. Several local
governments acted to curtail the rights of lesbians and gay men. By the early
1990s the gay community had organized more effectively than ever before in the
effort to assert their rights. In 1996 the Supreme Court ruled that state and
local governments cannot make it more difficult for homosexuals than other
groups to seek protection through antidiscrimination legislation. And in 2003,
in a landmark decision, the Supreme Court overturned its 1986 ruling and
nullified laws in 13 states that criminalized gay sexual practices. The Court
asserted that gays are “entitled to respect for their private lives” and that
“the state cannot demean their existence or control their destiny by making
their private sexual conduct a crime.” See also Gay Rights Movement.
| IV | CIVIL RIGHTS AND CIVIL LIBERTIES IN CANADA |
Although bordering the United States and
sharing a similar legal system, the development of civil rights and civil
liberties in Canada has followed a different path, in large part because Canada
had no equivalent to the U.S. Bill of Rights until very recently. Provincial
codes provided for several rights of the kind protected by the U.S. Bill of
Rights, but they did not apply throughout Canada and were far from complete.
After World War II, a political movement in Canada championed a Canadian Bill of
Rights, and in the 1950s the Supreme Court of Canada issued some rulings that
suggested it might develop civil rights concepts on its own. In 1960 the
Canadian Parliament enacted a Bill of Rights, but it applied only to the federal
government, not to the provinces. Moreover, the Bill of Rights was an ordinary
statute that lacked the force of an amendment to the Constitution of
Canada.
Beginning in the late 1960s, Prime Minister
Pierre Trudeau initiated a complex political and legal battle that ultimately
led, in 1982, to the adoption of the Canadian Charter of Rights and Freedoms as
part of the Canadian constitution. The charter established a menu of civil
rights and liberties similar to those set out in the U.S. Constitution.
Additionally, the charter expressly provides for the right of judicial review,
permitting those who claim that their rights under the charter have been
infringed or denied to seek remedies in court. One major difference between the
charter and the U.S. Constitution is that some of the charter’s provisions may
be overridden in certain circumstances by both the Canadian federal government
and provincial legislatures. In the United States, neither Congress nor the
state legislatures may pass a law that conflicts with rights protected by the
Constitution.
The charter spells out a host of
“fundamental freedoms,” including freedom of conscience and religion; freedom of
thought, belief, opinion, and expression, including freedom of the press;
freedom of peaceful assembly; and freedom of association. It provides “mobility
rights” that give Canadians the right to enter and leave Canada and to settle
and live in any province. The charter also spells out a host of procedural
rights in criminal prosecutions, including the rights of the accused against
self-incrimination, double jeopardy, cruel and unusual punishments, and
unreasonable search and seizure, and the rights to be presumed innocent, to
speedy trial, to representation by counsel, and to habeas corpus. The charter’s
version of the due process clauses in the U.S. Constitution declares that
“everyone has the right to life, liberty and security of the person” and cannot
be deprived of these rights “except in accordance with the principles of
fundamental justice.”
The charter also provides that all
individuals are equal under the law and may not be discriminated against by the
law on the basis of race, national or ethnic origin, color, religion, sex, age,
or mental or physical disability. This list of protections is more extensive
than provided for in the Equal Protection Clause of the U.S. Constitution or
than accepted by the U.S. Supreme Court. The charter also expressly permits
laws, programs, and activities whose goal is “the amelioration of conditions of
disadvantaged individuals.”
Signifying Canada’s bilingual heritage, the
charter has extensive provisions dealing with the rights of French and English
speakers. These include the rights of children to obtain instruction in their
birth language, whether English or French, and the right to speak either
language in Parliament and the courts.
Although the Canadian Charter of Rights and
Freedoms has had legal effect only since 1982, it seems to have prompted
Canadians to take their cases to courts in larger numbers, and it has prompted a
greater constitutional activism than before from Canada’s highest court. The
Canadian Supreme Court has followed the lead of the U.S. Supreme Court in
several instances, striking down, for example, antiabortion legislation and laws
restricting commercial advertising, and excluding evidence from trial if the
defendant was not advised of the right to a lawyer.
| V | INTERNATIONAL CONCERNS |
To establish the principles of civil
liberties and civil rights on an international basis, the United Nations Charter
was drawn up after World War II (1939-1945); it states that one of the purposes
of the UN is to promote and encourage respect for “human rights and for
fundamental freedoms for all without distinction as to race, sex, language or
religion.” In 1946 a UN Commission on Human Rights was established. In 1948 the
General Assembly adopted a Universal Declaration of Human Rights prepared by the
commission and embodying the 18th-century ideals of liberty, equality, and
fraternity. This declaration, however, is not binding on member states.
Almost all nations deny civil rights to
disfavored minorities within their borders. A major obstacle to international
protection of human rights is the opposition of most countries to interference
with their internal affairs, including questions of the rights of their own
citizens. To some degree this difficulty has been overcome through regional
arrangements and implementing bodies such as the European Commission on Human
Rights and the Inter-American Commission on Human Rights.
The administration of President Jimmy Carter
in the late 1970s introduced human rights as an element of foreign policy. This
initiative was unevenly pressed and sometimes ineffectual, but it increased
international awareness of the gravity of the problem of securing human rights
for all people. The administration of President Ronald Reagan took a less
aggressive stance on human rights violations, claiming that quiet diplomacy was
more effective than public threats. During the administrations of Presidents
George H. W. Bush and Bill Clinton, human rights issues became increasingly
intertwined with international trade and commercial treaties. Controversy
surrounded the granting of most-favored-nation status to countries alleged to
have violated human rights, such as China. Most-favored-nation status guarantees
that a country will receive the same terms offered to other trade partners in
commercial treaties.
International revulsion at atrocities
committed in several countries during the 1990s, including Rwanda and the former
Yugoslavia, led to the establishment of international tribunals to try the most
brutal war crimes. A permanent body, the International Criminal Court, began
operation in 2002 to try individuals accused of war crimes, genocide, crimes
against humanity, and crimes of aggression. Proponents said the existence of the
court would help deter future human rights abuses. The United States does not
participate in the International Criminal Court and does not recognize its
authority.
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