Civil Rights and Civil Liberties

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.

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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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