Civil Rights: A Brief Review

What are Civil Rights?

Civil Rights is a term used broadly in the news, the workplace, the government, and even in everyday conversation. Most United States citizens and residents likely know they have civil rights, but knowing what those rights are is not necessarily intuitive.

The American Declaration of Independence, July 4, 1776, began to define what rights the people have,¹ which the government cannot interfere in without the due process of law. Due Process, in itself a civil right, demands that the government follow legal and not arbitrary procedures in order to deprive a citizen of his or her civil rights.² The Declaration of Independence recognized that “Life, Liberty, and the pursuit of Happiness”³ are unalienable rights, for which governments are formed to protect.

When considering civil rights, the Bill of Rights jumps properly to the minds of many people. The Constitution of the United States went into effect on March 4, 1789. The original version of the current Constitution did not include many rights of the people, but instead largely focused on the role of the federal government. In 1791, on December 15th, the Bill of Rights became the first addition to the Constitution. The Bill of Rights is made up of the first ten amendments to the Constitution.

Today, civil rights are often thought of, not as granted by the Constitution, but rather guaranteed by it. Rights are freedoms the people reserve for themselves and restrict government power to control. The most famous, perhaps, are those rights actually referred to as “freedoms.”⁴ These are preserved by the First Amendment, and called:

• Freedom of Religion
• Freedom of Speech
• Freedom of the Press

These fundamental rights make up much of the principles that guided the Founding Fathers in creating our modern federal government.

The Freedom of Religion

Europeans first came to America en masse chiefly in order to escape religious persecution in England.⁵ Many more followed for a great number of reasons, but the American colonies were perceived as a place where nonconformists could migrate to and worship after their own designs.

By the time of the Revolution and Independence, religious intolerance had worked its way over from England to the colonies. Many of the Founding Fathers were particularly concerned that religious freedoms be carefully guarded in the new nation. As a result, the first and second clauses of the First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The Establishment Clause means that the federal government (and state governments, through the operation of the 14th Amendment) cannot establish a government-sponsored religion. Nor can the government write laws that intentionally favor one or some religions over any others. In other words, the government must be religion neutral. This is not to say that people in government must be religion neutral, rather only such things as the laws, policies, procedures and requirements must be. The Constitution also demands there be no religious test or oath in order to hold public office, either in an elected or employed position.⁶

The Free Exercise Clause prevents the government from denying the ability of any citizen to worship. While not all practices qualify under law, all qualified practices are strictly protected by the government.

Freedom of Speech & Freedom of the Press

These liberties are separate, yet related. The Constitution guarantees that government will not legislate to restrict the freedom of the people to communicate. There are certain limitations acknowledged by the Supreme Court, but by and large, the free flow of thoughts and opinions is not limited by the government. The Founding Fathers understood that restricting the transfer of ideas and information was a means of oppressing a people. The Revolution started with ideas and communication. The Founding Fathers jealously guarded these rights for the people.

These freedoms are not unlimited. One of the most famous limitations is the right of a community to declare truly dangerous speech illegal, for example, falsely shouting ‘Fire!’ in a crowded theater⁷ when there is no threat of fire. Other speech can also be limited. Slander and libel are generally not allowed. Both are forms of defamation, which is the act of making untrue statements that result in damage to another’s reputation. Slander is oral, and libel is communicated via media (published or broadcast). Both can result in a lawsuit.

Beyond the Freedoms

There are many other civil rights reserved by the people.⁸ These include the right to vote under the Constitution and its Fifteenth and Nineteenth Amendments, which today can generally only be limited by citizenship and age, and the right to prevent unlawful searches and seizures by the police powers of government under the fourth amendment.

Perhaps the most hotly discussed freedoms we have today fall under the category of the right to privacy. The Constitution does not explicitly guarantee a right to privacy, but the Supreme Court has determined that implicit in the document and by an amalgamation of concepts surrounding the rights and freedoms exists the right to privacy.

Civil rights encompass much more than racial and gender equality. The people have preserved their rights in ways that touch the daily life of everybody in the United States—even those whose rights have been taken away through due process. While overcoming the tragedies of unconstitutional discrimination may play a majority role, civil rights allow the citizens of the United States to think and believe and act without fear of oppression from the government. •

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1. This was true with respect to the budding American constitutional republican form of government, which is also called a liberal democracy. However, the Am. DOI was not the first philosophy of natural rights of man, legal positivism, or social contract theory. These began with the political and moral philosophers whom Thomas Jefferson greatly admired, such as Hume, Locke, Bentham, &c.
2. Due process starting to be understood as a civil right was an important tool in developing a government that allows the people to defend itself easily from the arbitrary rule of man by requiring a principled rule of law. Due process is not uniquely American, as the idea has distinct roots in English common law courts, but the American due process is arguably a highly-evolved and refined form of due process. Due process is a critically and fundamentally important civil right.
3. This famous phrase is (probably) derived from the Lockean statement that ‘no one ought to harm another in his life, health, liberty, or possessions.’ See, ‘Two Treatises on Government,’ by John Lock, Book 2, Ch. 2, Sec. 6.
4. This sentence appears like I have left out the freedoms to peaceably assemble and petition for redresses. That was not my intent. I could have worded the phrase better, to capture the idea that the three freedoms I cited were indeed the most famous, of the five First Amendment clauses called ‘freedoms.’
5. Religious liberty in Colonial America and the United States is a personal favorite topic of mine. Expect to see much on that here.
6. This is a hyper-simplified explanation of the Establishment Clause, for two reasons. First, this was directed at a lay audience. Second, there was limited space. The legal theory and history behind the Establishment Clause, as the foundation for a secular government and a fortified wall of separation of church and state is incredibly robust. Expect to see much more on this as well.
7. See, Schenck v. United States, an opinion by Oliver Wendell Holmes, Jr.
8. Many people mistakenly believe that the Constitution grants the people rights. Quite the contrary, the people reserve all rights that they do not grant to the federal and state governments. As the Tenth Amendment states, ‘the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ More on this important idea another time.

This entry was posted on Saturday, November 14th, 2009 at 6:08 am and is filed under civil rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a comment below, or trackback from your own site.