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.

C.1.

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.

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, that 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.

E.

Minority Rights

E.1.

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.

E.2.

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.

E.3.

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. 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.”