Civil LibertiesCivil Liberties

May 28, 2003May 28, 2003

Civil Liberties -- What Are Civil Liberties -- What Are They?They?

• vs. Civil Rightsvs. Civil Rights– civil liberties adhere to individuals rather than civil liberties adhere to individuals rather than

groupsgroups– negative vs. positive freedomnegative vs. positive freedom

• civil liberties are about what government must civil liberties are about what government must notnot do; do; civil rights are largely about what government must docivil rights are largely about what government must do

Types of Civil LibertiesTypes of Civil Liberties

• Fundamental Freedoms Fundamental Freedoms – ““Congress shall make Congress shall make nono law...” abridging... law...” abridging...

• freedom of speech, religion, assemblyfreedom of speech, religion, assembly• freedom of the pressfreedom of the press• freedom to bear arms (disputed)freedom to bear arms (disputed)

• Legal Rights – Due ProcessLegal Rights – Due Process• against unreasonable search and seizure, self-against unreasonable search and seizure, self-

incrimination, etc.incrimination, etc.• property rightsproperty rights

– due processdue process– just compensationjust compensation

Types of Civil LibertiesTypes of Civil Liberties

• Fourteenth Amendment (1868)Fourteenth Amendment (1868)– Equal Protection of the LawsEqual Protection of the Laws

• extension of the Bill of Rights to the statesextension of the Bill of Rights to the states– no state shall deny any person equal protection of the lawsno state shall deny any person equal protection of the laws

• incorporation, 1925-1969incorporation, 1925-1969

Civil Liberties -- Absolute or Civil Liberties -- Absolute or Competing ClaimsCompeting Claims• competing claimscompeting claims

– individual rights vs. general welfareindividual rights vs. general welfare– competing rights claimscompeting rights claims

• trends (to 9/11)trends (to 9/11)– trend has been towards expansion of the definition trend has been towards expansion of the definition

and scope of civil libertiesand scope of civil liberties– fewer government actions on behalf of general fewer government actions on behalf of general

interest can justify limiting civil libertiesinterest can justify limiting civil liberties– more and more issues redefined as competing rights more and more issues redefined as competing rights

claims – claims – the legalization of politicsthe legalization of politics

Legalized Politics -- The Legalized Politics -- The ImplicationsImplications

• positive aspects of legalized politicspositive aspects of legalized politics– offers accessoffers access

– not based on popular opinionnot based on popular opinion

• negative aspects of legalized politicsnegative aspects of legalized politics– constrains general welfareconstrains general welfare

– atomizingatomizing

– style of politicsstyle of politics• adversarialadversarial• not prone to compromisenot prone to compromise

Security and Civil Liberties – An Security and Civil Liberties – An Altered Balance Post-9/11Altered Balance Post-9/11

• order/security vs. individual libertyorder/security vs. individual liberty

• immediate government reaction to 9/11immediate government reaction to 9/11• detention of non-citizens without laying chargesdetention of non-citizens without laying charges

• order that solicitor-client privilege would not be order that solicitor-client privilege would not be honored by Justice Departmenthonored by Justice Department

• refusing to provide name, location of detention or refusing to provide name, location of detention or numbers of those arrestednumbers of those arrested

– overwhelming public supportoverwhelming public support• 86% viewing govt’s action as appropriate (Newsweek)86% viewing govt’s action as appropriate (Newsweek)

Security and Civil Liberties – An Security and Civil Liberties – An Altered Balance Post-9/11Altered Balance Post-9/11

• USA PATRIOT ActUSA PATRIOT Act– ratification of Ashcroft responseratification of Ashcroft response

• broadened government ability to implement broadened government ability to implement wiretappingwiretapping

• surveillance of emails and computerssurveillance of emails and computers• power to detain and deport foreignerspower to detain and deport foreigners• increased power to detect money launderingincreased power to detect money laundering

– received overwhelming support in both received overwhelming support in both House and SenateHouse and Senate

The Constitution of the United The Constitution of the United States of America (1787)States of America (1787)

““We the peopleWe the people of the United States, in Order of the United States, in Order to form a more perfect Union, establish to form a more perfect Union, establish Justice, insure domestic tranquility, provide Justice, insure domestic tranquility, provide for the common defence, promote the for the common defence, promote the general welfare, and secure the Blessings of general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the ordain and establish this Constitution for the United States of America.”United States of America.”

Main Point!Main Point!

• there is a strong tension between there is a strong tension between individual rights and collective well-individual rights and collective well-being in the American political systembeing in the American political system

• overall trend has been for Americans to overall trend has been for Americans to increasingly view themselves as rights-increasingly view themselves as rights-bearing individuals and to resolve bearing individuals and to resolve political disputes in this mannerpolitical disputes in this manner