“Laws passed after years of untiring effort, guaranteeing married women certain rights of property, and mothers the custody of their children, have been repealed in states where we supposed all was safe. Thus have our most sacred rights been made the football of legislative caprice, proving that a power which grants as a privilege that what by nature is a right, may withhold the same as a penalty when deeming it necessary for its own perpetuation.”
—National Woman Suffrage Association in 1876 (1)
Americans are accustomed to using “civil rights” and “civil liberties” interchangeably, as though they mean the same thing. That is acceptable for daily conversation, but you do need to know the difference between these concepts for this class. Part of the confusion is due to the fact that both civil rights and civil liberties ultimately originate from the idea of natural rights, which we discussed at the beginning of the course. We should also note that mankind went through a civil liberties revolution between the Medieval period and the nineteenth century. We all continue to benefit from that revolution. What we mean is that our entire frame of reference has changed from one that emphasized the primacy of royal and aristocratic privileges to one centered on individual liberties. It was a slow and difficult revolution, but it happened through the struggles of many people. (2) If you’d like to test this proposition, try this experiment: Get in your time machine and travel back to the year 800 and talk to some European serfs about their individual freedom of religion, speech, conscience, and the like. They would not know what the Hell you were talking about. If you then transported yourself to 1880 and talked with some farmers about the same topics, you would be speaking a language that they understood and embraced.
Your civil liberties are essentially your natural rights of life, liberty, and property translated into specific guarantees by the United States Constitution, especially the Bill of Rights and the due process clause of the Fourteenth Amendment, which says that no state may “deprive any person of life, liberty, or property, without due process of law.” These guarantees were designed to protect each individual from the potentially abusive power of government, although civil libertarians today are growing increasingly concerned about the ability of large corporations to infringe on individual rights as well. The bulk of your civil liberty guarantees are located in the Bill of Rights. These include freedom of speech and the press, freedom of religion, freedom from unreasonable searches and seizures, procedural guarantees if you are accused of a crime, freedom from cruel and unusual punishment, and property rights. Some civil liberties protections are included in the body of the Constitution itself, including the privilege of habeas corpus, and prohibitions against bills of attainder, ex post facto laws, and the impairment of contracts.
The last Constitutional protections mentioned above are things you should know. Habeus corpus literally means “you have the body,” and refers to a court ordering state or federal authorities to bring a detained person to the court and show cause for the detention or incarceration. A bill of attainder is when a legislative body acts like a judicial body by passing a law that declares a person or a group guilty of a crime and punishes them. Congress and state legislatures are forbidden from doing that. Ex post facto means “after the fact,” so an ex post facto law is one that declares an action illegal after it has already happened and subjects the person or group who did it to arrest and trial. It would also refer to a law that increased the penalty for a crime if the legislature tried to apply the stiffer penalty to those who committed the crime before the law was passed. Congress and state legislatures are forbidden from doing that. Congress and state legislatures are also forbidden from impairing the obligation of contracts. If I render services to you and you owe me a great deal of money according to the contract that we both signed, you might be tempted to go to your friends in Congress and get them to pass a law saying that you do not have to pay me. That is not allowed.
In addition to life, liberty, and property, natural rights philosophers were concerned that individuals be treated equally. Of course, those very same philosophers had a fairly limited notion of “the people” for whom they sought equal treatment. The same is true for the Constitution’s framers, who did not concern themselves with equal treatment of women, men without property, and non-whites. Our modern notion of civil rights—freedom from discriminatory treatment based on some characteristic—is tied in large part to the civil rights clause of the Fourteenth Amendment, which says that no state may “deny to any person within its jurisdiction the equal protection of the laws.” The verb “to discriminate,” in its generic sense, brings to mind someone who is making fine distinctions between two things that are otherwise similar. For instance, a wine connoisseur with a discriminating palate might be able to tell whether a German wine came from the Rhine Valley or the Mosel Valley. In the political arena, discrimination occurs when people—who are otherwise quite similar—are not receiving the equal protection of the laws or equal access to liberties based on a characteristic such as their gender, race, religion, national origin, sexual orientation, age, or disability.
Similar to civil liberties, we’ve gone through a civil rights revolution. This revolution happened more recently, between the mid-eighteenth century and now. We used to have no real qualms about parsing out civil liberties on an unequal basis, with the determining factors being sex, race, religion, class, and so forth. We used to take it for granted that some people were freer than were others. We no longer think so, although we do still argue about civil rights.
Civil Rights and Civil Liberties Issues
The key contextual clue in determining whether a particular situation is a civil rights or a civil liberties issue is the presence or absence of discrimination. Were a state to pass a law stripping all citizens of the right to possess firearms, that would be regarded as a civil liberties issue. If that same state were instead to pass a law—similar to actual laws that several states used to have—that forbid African Americans from possessing firearms, then that would be a civil rights issue. In the latter case, a person’s freedom from government intrusion is contingent upon his race, which is an idea that is no longer constitutionally acceptable in the United States.
- National Woman Suffrage Association, Declaration of the Rights of Women. July 4, 1876. In Timothy Patrick McCarthy and John McMillan, The Radical Reader: A Documentary History of the American Radical Tradition. New York: The New Press, 2003. Pages 191-195.
- A. C. Grayling, Toward the Light of Liberty: The Struggle for Freedom and Rights That Made the Modern World. New York: Walker & Company, 2007.