essay about civil liberties

Chapter 4: Civil Liberties

What Are Civil Liberties?

Learning objectives.

By the end of this section, you will be able to:

• Define civil liberties and civil rights
• Describe the origin of civil liberties in the U.S. context
• Identify the key positions on civil liberties taken at the Constitutional Convention
• Explain the Civil War origin of concern that the states should respect civil liberties

The U.S. Constitution —in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to “persons,” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms when they are in the United States or its territories as adult citizens do. So, whether you are a Japanese tourist visiting Disney World or someone who has stayed beyond the limit of days allowed on your visa, you do not sacrifice your liberties. In everyday conversation, we tend to treat freedoms, liberties, and rights as being effectively the same thing—similar to how separation of powers and checks and balances are often used as if they are interchangeable, when in fact they are distinct concepts.

DEFINING CIVIL LIBERTIES

To be more precise in their language, political scientists and legal experts make a distinction between civil liberties and civil rights, even though the Constitution has been interpreted to protect both. We typically envision civil liberties as being limitations on government power, intended to protect freedoms that governments may not legally intrude on. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion; the states and the national government cannot forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. You are free to create your own religion and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion may be regulated if it impinges on the rights of others. Similarly, the Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, as we will see later in this chapter, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects.

Civil rights, on the other hand, are guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics. Because of the Constitution’s civil rights guarantee, it is unlawful for a school or university run by a state government to treat students differently based on their race, ethnicity, age, sex, or national origin. In the 1960s and 1970s, many states had separate schools where only students of a certain race or gender were able to study. However, the courts decided that these policies violated the civil rights of students who could not be admitted because of those rules. [1]

The idea that Americans—indeed, people in general—have fundamental rights and liberties was at the core of the arguments in favor of their independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of John Locke to express the colonists’ belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to his or her subjects. It was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities (Figure) .

CIVIL LIBERTIES AND THE CONSTITUTION

The Constitution as written in 1787 did not include a Bill of Rights , although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution believed they faced much more pressing concerns than the protection of civil rights and liberties, most notably keeping the fragile union together in the light of internal unrest and external threats.

Moreover, the framers thought that they had adequately covered rights issues in the main body of the document. Indeed, the Federalists did include in the Constitution some protections against legislative acts that might restrict the liberties of citizens, based on the history of real and perceived abuses by both British kings and parliaments as well as royal governors. In Article I , Section 9, the Constitution limits the power of Congress in three ways: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

Finally, the writ of habeas corpus is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained. Particularly in times of war, or even in response to threats against national security, the government has held suspected enemy agents without access to civilian courts, often without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial. For example, during the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military court s, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating. [2]

During World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin (Figure) . [3]

More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought, with mixed results, to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I , Section 9, would suffice, and no separate bill of rights was needed. Alexander Hamilton , writing as Publius in Federalist No. 84, argued that the Constitution was “merely intended to regulate the general political interests of the nation,” rather than to concern itself with “the regulation of every species of personal and private concerns.” Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights not included in such a list were not protected. Later, James Madison , in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” [4]

For that matter, the Articles of Confederation had not included a specific listing of rights either.

However, the Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the elastic clause in Article I, Section 8, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus , whom most scholars believe to be Robert Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” [5]

The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution’s lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.

Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights (Figure) .

EXTENDING THE BILL OF RIGHTS TO THE STATES

In the decades following the Constitution’s ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore . [6]

In this case, which dealt with property rights under the Fifth Amendment , the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

In the wake of the Civil War, however, the prevailing thinking about the application of the Bill of Rights to the states changed. Soon after slavery was abolished by the Thirteenth Amendment , state governments—particularly those in the former Confederacy—began to pass “black codes” that restricted the rights of former slaves and effectively relegated them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction in Congress demanded that the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the black codes. Their long-term solution was to propose two amendments to the Constitution to guarantee the rights of freed slaves on an equal standing with whites; these rights became the Fourteenth Amendment , which dealt with civil liberties and rights in general, and the Fifteenth Amendment , which protected the right to vote in particular (Figure) . But, the right to vote did not yet apply to women or to Native Americans.

With the ratification of the Fourteenth Amendment in 1868, civil liberties gained more clarification. First, the amendment says, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which is a provision that echoes the privileges and immunities clause in Article IV , Section 2, of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, while others have argued that only some rights are extended. In 1999, Justice John Paul Stevens , writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another.  [7]

More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. [8]

The second provision of the Fourteenth Amendment that pertains to applying the Bill of Rights to the states is the due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process). Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. [9]

Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into the practices of the states; in other words, the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.

For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try the person for the crime in question. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) But the Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

Selective incorporation is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. Another area in which the Supreme Court gradually moved to incorporate the Bill of Rights regards censorship and the Fourteenth Amendment. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases. [10]

The Bill of Rights is designed to protect the freedoms of individuals from interference by government officials. Originally these protections were applied only to actions by the national government; different sets of rights and liberties were protected by state constitutions and laws, and even when the rights themselves were the same, the level of protection for them often differed by definition across the states. Since the Civil War, as a result of the passage and ratification of the Fourteenth Amendment and a series of Supreme Court decisions, most of the Bill of Rights’ protections of civil liberties have been expanded to cover actions by state governments as well through a process of selective incorporation. Nonetheless there is still vigorous debate about what these rights entail and how they should be balanced against the interests of others and of society as a whole.

• Green v. County School Board of New Kent County , 391 U.S. 430 (1968); Allen v. Wright , 468 U.S. 737 (1984). ↵
• Ex parte Milligan , 71 U.S. 2 (1866). ↵
• Ex parte Quirin , 317 U.S. 1 (1942); See William H. Rehnquist. 1998. All the Laws but One: Civil Liberties in Wartime . New York: William Morrow. ↵
• American History from Revolution to Reconstruction and Beyond, “Madison Speech Proposing the Bill of Rights June 8 1789,” http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php (March 4, 2016). ↵
• Constitution Society, “To the Citizens of the State of New-York,” http://www.constitution.org/afp/brutus02.htm (March 4, 2016). ↵
• Barron v. Baltimore , 32 U.S. 243 (1833). ↵
• Saenz v. Roe , 526 U.S. 489 (1999). ↵
• McDonald v. Chicago , 561 U.S. 742 (2010). ↵
• Sherbert v. Verner , 374 U.S. 398 (1963). ↵
• Near v. Minnesota , 283 U.S. 697 (1931). ↵

American Government Copyright © 2016 by cnxamgov is licensed under a Creative Commons Attribution 4.0 International License , except where otherwise noted.

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Civil liberties and the Bill of Rights

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The federal government is obliged by many constitutional provisions to respect the individual citizen’s basic rights. Some civil liberties were specified in the original document, notably in the provisions guaranteeing the writ of habeas corpus and trial by jury in criminal cases (Article III, Section 2) and forbidding bills of attainder and ex post facto laws (Article I, Section 9). But the most significant limitations to government’s power over the individual were added in 1791 in the Bill of Rights. The Constitution’s First Amendment guarantees the rights of conscience , such as freedom of religion , speech , and the press , and the right of peaceful assembly and petition . Other guarantees in the Bill of Rights require fair procedures for persons accused of a crime—such as protection against unreasonable search and seizure , compulsory self-incrimination , double jeopardy , and excessive bail —and guarantees of a speedy and public trial by a local, impartial jury before an impartial judge and representation by counsel . Rights of private property are also guaranteed. Although the Bill of Rights is a broad expression of individual civil liberties, the ambiguous wording of many of its provisions—such as the Second Amendment ’s right “to keep and bear arms” and the Eighth Amendment ’s prohibition of “cruel and unusual punishments”—has been a source of constitutional controversy and intense political debate. Further, the rights guaranteed are not absolute, and there has been considerable disagreement about the extent to which they limit governmental authority. The Bill of Rights originally protected citizens only from the national government. For example, although the Constitution prohibited the establishment of an official religion at the national level, the official state-supported religion of Massachusetts was Congregationalism until 1833. Thus, individual citizens had to look to state constitutions for protection of their rights against state governments.

Recent News

After the American Civil War , three new constitutional amendments were adopted: the Thirteenth (1865), which abolished slavery; the Fourteenth (1868), which granted citizenship to those who had been enslaved; and the Fifteenth (1870), which guaranteed formerly enslaved men the right to vote . The Fourteenth Amendment placed an important federal limitation on the states by forbidding them to deny to any person “life, liberty, or property, without due process of law” and guaranteeing every person within a state’s jurisdiction “the equal protection of its laws.” Later interpretations by the Supreme Court in the 20th century gave these two clauses added significance. In Gitlow v. New York (1925), the due process clause was interpreted by the Supreme Court to broaden the applicability of the Bill of Rights’ protection of speech to the states, holding both levels of government to the same constitutional standard. During subsequent decades, the Supreme Court selectively applied the due process clause to protect from state infringement other rights and liberties guaranteed in the Bill of Rights, a process known as “selective incorporation.” Those rights and liberties included freedom of religion and of the press and the right to a fair trial, including the right to an impartial judge and to the assistance of counsel. Most controversial were the Supreme Court’s use of the due process clause to ground an implicit right of privacy in Roe v. Wade (1973), which led to the nationwide legalization of abortion , and its selective incorporation of the Second Amendment’s right to “keep and bear Arms” in McDonald v. Chicago (2010).

The Supreme Court applied the equal protection clause of the Fourteenth Amendment in its landmark decision in Brown v. Board of Education of Topeka (1954), in which it ruled that racial segregation in public schools was unconstitutional. In the 1960s and ’70s the equal protection clause was used by the Supreme Court to extend protections to other areas, including zoning laws, voting rights , and gender discrimination . The broad interpretation of this clause has also caused considerable controversy.

Twenty-seven amendments have been added to the Constitution since 1789. In addition to those mentioned above, other far-reaching amendments include the Sixteenth (1913), which allowed Congress to impose an income tax ; the Seventeenth (1913), which provided for direct election of senators; the Nineteenth (1920), which mandated women’s suffrage ; and the Twenty-sixth (1971), which granted suffrage to citizens 18 years of age and older.

In more than two centuries of operation, the United States Constitution has proved itself a dynamic document. It has served as a model for other countries, its provisions being widely imitated in national constitutions throughout the world. Although the Constitution’s brevity and ambiguity have sometimes led to serious disputes about its meaning, they also have made it adaptable to changing historical circumstances and ensured its relevance in ages far removed from the one in which it was written.

10. Civil Liberties and Civil Rights

"It is a fair summary of constitutional history that the landmarks of our liberties have often been forged in cases involving not very nice people." - Supreme Court Justice Felix Frankfurter

Each of these people made sensational headline news as the center of one of many national civil liberties disputes in the late 20th century. They became involved in the legal process because of behavior that violated a law, and almost certainly, none of them intended to become famous. More important than the headlines they made, however, is the role they played in establishing important principles that define the many civil liberties and civil rights that Americans enjoy today.

Liberties or Rights?

What is the difference between a liberty and a right? Both words appear in the Declaration of Independence and the Bill of Rights. The distinction between the two has always been blurred, and today the concepts are often used interchangeably. However, they do refer to different kinds of guaranteed protections.

Civil liberties are protections against government actions. For example, the First Amendment of the Bill of Rights guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an individual's freedom of worship. Amendment I gives the individual "liberty" from the actions of the government.

Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans. The term "civil rights" is often associated with the protection of minority groups, such as African Americans, Hispanics, and women. The government counterbalances the "majority rule" tendency in a democracy that often finds minorities outvoted.

Right vs. Right

Most Americans think of civil rights and liberties as principles that protect freedoms all the time. However, the truth is that rights listed in the Constitution and the Bill of Rights are usually competing rights. Most civil liberties and rights court cases involve the plaintiff's right vs. another right that the defendant claims has been violated.

For example, in 1971, the New York Times published the "Pentagon Papers" that revealed some negative actions of the government during the Vietnam War. The government sued the newspaper, claiming that the reports endangered national security. The New York Times countered with the argument that the public had the right to know and that its freedom of the press should be upheld. So, the situation was national security v. freedom of the press. A tough call, but the Court chose to uphold the rights of the press.

The Bill of Rights and 14th Amendment

The overwhelming majority of court decisions that define American civil liberties are based on the Bill of Rights, the first ten amendments added to the Constitution in 1791. Civil liberties protected in the Bill of Rights may be divided into two broad areas: freedoms and rights guaranteed in the First Amendment (religion, speech, press, assembly, and petition) and liberties and rights associated with crime and due process. Civil rights are also protected by the Fourteenth Amendment, which protects violation of rights and liberties by the state governments.

14th Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age [Changed by the 26th Amendment], and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Protection of civil liberties and civil rights is basic to American political values, but the process is far from easy. Protecting one person's right may involve violating those of another. How far should the government go to take "positive action" to protect minorities? The answers often come from individuals who brush most closely with the law, whose cases help to continually redefine American civil liberties and rights.

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The notion that humans have natural, inalienable rights is the foundation of liberal democracies. Political philosophers – from John Locke to John Stuart Mill to John Rawls – argue that the foundation of the justice of the state is its respect for and protection of civil liberties, such as due process, freedom of speech, and right to privacy. In fact, civil liberties are so fundamental that some consider them as “sacred,” and not to be subject to comparison or trade-offs.

However, when societies are faced with major crises, the trade-offs between individual civil liberties and societal well-being become acute and inevitable. On the one hand, the state’s ability to weather the crises often hinges on mobilizing resources and imposing restrictions. On the other hand, as Friedrich Hayek puts it, “‘Emergencies’ have always been the pretext on which the safeguards of individual liberty have been eroded.” Crises may become the excuse for permanent erosion of civil liberties and even a backsliding of civil democracies.

As the world confronts the global health threat of the COVID-19 pandemic, what are citizens willing to sacrifice and what are they steadfast in supporting no matter what the circumstance? How do citizens’ views vary across countries and across demographic groups within a country? How do such views change over time in relation to the evolution of the pandemic? Given the scale of the pandemic and the extraordinary measures adopted by governments to curtail it, the COVID-19 crisis provides a unique and tragic opportunity to understand how citizens view the trade-offs between civil liberties and improved public health conditions.

While COVID-19 represents one of the largest and in many dimensions unprecedented crises in recent history, the debate about trading-off civil liberties during crises has been age-old. Similar discussions have repeatedly arisen in the past: for example, after the terrorist attacks in 2001 and the US government’s surveillance of the population; after many devastating natural disasters when various governments move to restrict freedom; and after the Great Influenza in 1918 when many states imposed bans on public gatherings and enforced face masks in public space – much like what we are witnessing today, more than a century later (see Figures 1 and 2).

In order to study how citizens view the trade-offs between civil liberties and improved public health conditions during the COVID-19 pandemic, my collaborators and I administered a large-scale representative survey during the past 7 months to more than 400,000 people in 15 countries – Australia, Canada, China, France, Germany, India, Italy, Japan, the Netherlands, Singapore, Spain, South Korea, Sweden, the United Kingdom, and the United States. By focusing directly on citizens’ evolving attitudes toward public-health policies and civil liberties, we can see how people navigate the trade-offs brought on by the pandemic, as well as the factors that shape public preferences.

Several conclusions emerge from the study. First, a large fraction of people around the world reported being willing to sacrifice their own rights and freedoms in order to improve public health conditions during the COVID-19 pandemic. Overall, about 80% of respondents were willing to sacrifice at least some of their own rights in times of crisis, and citizens from the countries surveyed ranked the importance of core civil liberties similarly. For example, people tend to be least willing to give up rights to privacy or cede power to a central figure, and most willing to endure personal restrictions or significant economic losses.

However, the differences between countries are substantial (see Figure 3). For example, a mere 5% of respondents in China expressed an unwillingness to sacrifice any of their own rights during times of crisis, whereas four times as many respondents in the US did. Moreover, almost half of US respondents said they would not give any ground on freedom of the press, compared to under 5% of respondents in China. The citizens of Japan and the United States, for instance, tend to be among the least willing to sacrifice civil liberties in exchange for improved public health conditions. Conversely, the citizens of China and India seem to be among the most willing to. EU citizens tend to fall somewhere in between. 

We also find that, in democratic societies, individuals who have stronger connections to countries that historically did not provide extensive protections of civil liberties are less willing to sacrifice their own rights and freedom for the sake of public health. Specifically, we find that individuals who live in regions that belonged to East Germany before reunification, and individuals who have relatives from North Korea reported being less willing to give up their rights than their co-national counterparts.

Second, we document a strong and robust pattern of individuals with greater exposure to health risks exhibiting a stronger willingness to give up civil liberties in the name of public health. Citizens more prone to COVID-19-related health complications and residing in COVID-19 hotspots are more willing to sacrifice individual rights and freedoms than are those who have a lower risk. Exposure to COVID-19 risks is associated with greater acceptance of policies to relax privacy protections, greater willingness to suspend democratic procedures and to delegate decision-making to experts, and greater tolerance of policies that curtail economic activity and mobility.

Third, we find that citizens’ willingness to sacrifice civil liberties reflects more than just health concerns. People with less education and weaker attachments to the labor force, or (in the case of the US) who are members of racial and ethnic minorities, are less willing to trade off their rights than are other groups, even in the face of heightened health risks. Perhaps being able to accept restrictions on civil liberties is a “luxury” that members of these groups, who may have a long history of exclusion and abuse, cannot afford, so they view any such restrictions as a threat to their lives and livelihoods. It also is possible that those who are more economically advantaged already have their interests well represented by policymakers, and don’t necessarily have to rely on free speech and assembly, much less worry about state surveillance.

Finally, we find that in most countries, people’s willingness to give up civil liberties in exchange for improved public health conditions closely tracks the extent to which they are worried about the pandemic. As shown in Figure 4, between March and mid-June 2020, people became less worried about the risks associated with the COVID-19 pandemic, and their willingness to sacrifice their rights decreased. After a plateau period in the later summer, worries picked up again and so did people’s willingness to sacrifice civil liberties for the sake of public health.

This study paints a complicated picture of how citizens trade-off civil liberties during major crises. While many do not consider civil liberties as “sacred,” their willingness to sacrifice rights and freedom during crises is shaped by different exposure to the health risks, diverse socioeconomic background, and distinct perceptions of the potential long-term erosion of civil liberties.

The policy responses adopted by governments, especially democratic ones, should be responsive to the preferences of the citizenry. The extent to which citizens comply with policies enacted in times of crises likely depends on whether they agree with the restrictions imposed by the policies, which could ultimately determine the efficacy of these policies against the pandemic. Moreover, providing safeguards that ensure restrictions are lifted once the crisis subsides would be instrumental in citizens’ willingness to sacrifice rights and freedom during the crisis, and critical to the protection of the core values, rights and freedom that humanity fights for and cherishes dearly.

3 November 2020

National Government, Crisis, and Civil Liberties

What is the balance

Lesson Components

Guiding Questions

• How do we balance the security of the nation with protections of individual liberties?
• How much power should the federal government have over an individual’s civil liberties?
• Students will define civil liberties.
• Students will explain the limits of individual freedoms.
• Students will explain the original intention of the Bill of Rights.
• Students will analyze the balance that is needed in a federal republic between individual freedoms and the security of the country.

Expand Materials Materials

Educator Resources

• Handout B: A Proclamation Answer Key
• Handout D: Case Briefing Sheet Answer Key
• Handout G: The History of Civil Liberty Laws Answer Key

Student Handouts

• National Government, Crisis, and Civil Liberties Essay

Handout A: Abraham Lincoln and Habeas Corpus

• Handout B: A Proclamation

Handout C: Milligan and the Constitution

Handout d: case briefing sheet.

• Handout E: The Ruling
• Handout F: Civil Liberty Laws
• Handout G: The History of Civil Liberty Laws Table

Expand Key Terms Key Terms

• Constitution
• habeas corpus
• military tribunal
• civil liberties
• Bill of Rights
• civilian court
• Amendment VI
• speedy and public trial
• Article I Sections 8 & 9
• Article II Sections 2 & 3

Expand More Information More Information

Following this activity it would be helpful for students to learn of other more recent examples of the President’s need to balance national security with individual freedoms. One example is Security, Liberty, and the USA PATRIOT Act .

Expand Prework Prework

Have students read the National Government, Crisis, and Civil Liberties Essay prior to class time.

Basic understanding of civil liberties and the bill of rights is required for this activity. If more context than the introductory essay is needed, students may benefit from one or more of the following:

• https://billofrightsinstitute.org/webinars/2021-ap-government-prep-with-paul-sargent-5-reviewing-civil-liberties
• https://billofrightsinstitute.org/webinars/2021-ap-government-skills-with-john-burkowski-8-unit-3-civil-liberties-civil-rights-digital-exam
• https://billofrightsinstitute.org/webinars/ap-government-prep-episode-7-civil-liberties

Other resources

• https://billofrightsinstitute.org/games/life-without-the-bill-of-rights

Expand Warmup Warmup

Write this well-known quote on the board, but do not provide the source or date.

“[T]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” (Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, November 11, 1755).

Ask for student responses to the statement: agree/disagree/why. Share source of the quote, and tell students that tension between liberty and security is a recurring feature of U.S. history.

Expand Activities Activities

Have students read Handout A: Abraham Lincoln and Habeas Corpus . Display Handout B: A Proclamation . Point out the questions, and have students listen for the answers as you read the Proclamation aloud. Then go over the answers as a large group. Point out to students that in 1861, Lincoln suspended habeas corpus in some areas. The 1862 suspension of habeas corpus expanded to cover the entire nation.

Preparation for trial role-play: Tell students they will now simulate a trial of Mr. Milligan. Distribute Handout C: Milligan and the Constitution . Read aloud the scenario of Mr. Milligan, who has been sentenced to death for disloyalty by a military court. Divide the class into groups of appropriate size for: attorneys for Mr. Milligan, attorneys for the US, and the Justices of Supreme Court. Give each group a copy of Handout D: Case Briefing Sheet . Have groups complete Handout D using Handouts A , B , and C .

The trial: With about twenty minutes remaining, allow attorneys for the government to make their case, followed by attorneys from Mr. Milligan. The Supreme Court members should then deliberate and announce their verdict. Tell students that they were debating an actual Supreme Court case from 1866. Using Handout E: The Ruling , explain the information and ask students if they agree with the Court. Was Lincoln’s action constitutional? Ask students how they would assess Lincoln’s attempt to balance the strength of the government with the liberties of its people?

Break students into four groups and have each group read one of the policies on Handout F: Civil Liberty Laws . After they finish reading, they should do some background research to complete the graphic organizer on Handout G: The History of Civil Liberty Laws .

After each group has completed their section of Handout G , hold a class discussion about the historical implications of each of the policies and discuss how they affected civil liberties.

Expand Wrap Up Wrap Up

Students discuss and write a reflection on the balance between civil liberties and security as portrayed in this example. How do we know when we’ve gotten this issue right?

Expand Homework Homework

Students conduct research into another example of the tensions between security and individual freedom during a time of crisis in this nation. Depending upon the age and class, instructor could provide a list of examples and have students each pick one to research for homework. Students would write up their findings and share them with the class the next day.

Expand Extensions Extensions

Students research political cartoons exhibiting this tension between rights and liberties. Further investigation into the Bill of Rights and selective incorporation. Students explore how the federal government has intervened in state laws to prevent infringement of individual liberties.

Essay: National Government, Crisis, and Civil Liberties

Primary source: a proclamation – abraham lincoln, 1862, handout e: the ruling of ex parte milligan (1866), primary source: civil liberty laws, handout g: the history of civil liberty laws.

Next Lesson

State and Local Government

Related resources.

Civil Liberties and Coronavirus

The balancing of liberty and security is difficult, particularly in times of crisis. During the COVID-19 pandemic, both national and state governments across the country have exercised expansive powers to enact policies in an effort to slow the spread of the virus.

2021 AP Government Prep with Paul Sargent #5 | Reviewing Civil Liberties

Session 5: Civil Liberties This session investigates the history of civil liberties in the United States. Special attention is on the important Supreme Court cases that outlined modern civil liberties and the process of selective incorporation that applied the Bill of Rights to state governments.

2021 AP Government Skills with John Burkowski #8 | Unit 3: Civil Liberties & Civil Rights (Digital Exam)

In this episode, we review strategies in developing skills to best apply relevant content related to the interpretation, expansion, and limitation of individual freedoms by the various institutions of the American political system, particularly through landmark Supreme Court decisions.

2020 AP Government Prep Episode #7 | Civil Liberties

Session 7: Civil Liberties This session investigates the history of civil liberties in the United States. Special attention is on the important Supreme Court cases that outlined modern civil liberties and the process of selective incorporation that applied the Bill of Rights to state governments. The process was utilized significantly in working to obtain civil liberties specifically through the Due Process Clause and Equal Protection Clause of the 14th Amendment.

Civil Liberties and Law in the Era of Surveillance

• November 13, 2014
• Marguerite Rigoglioso
• Comments ( 1 )
• Fall 2014 – Issue 91
• Cover Story
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It may no longer be an exaggeration to say that big brother is watching . When Edward Snowden leaked classified government documents last year, many were surprised to learn just how much access the National Security Agency (NSA) has to the personal email and phone records of ordinary citizens. Those revelations about the scope and extent of surveillance by American intelligence agencies have prompted a national debate about civil liberties in an age of new technology that enables the government to both collect and store vast amounts of personal information about its citizens. The discussion is also surfacing in local communities where technology allows law enforcement to indiscriminately gather information on law-abiding citizens—information that is collected, kept, and shared with little to no oversight, or awareness by the general public.

Today, new technologies are changing the relationship between the citizen and the state, with the government and law enforcement able to access our information and observe our private activities, raising important civil liberties questions. Stanford Law School faculty and alumni are centrally involved in some of the most important questions surrounding this issue—working in key areas where the law is still catching up with technology.

Looming large over the debate is the post-9/11 war on terrorism, which has led to legislation such as the USA Patriot Act, designed to make it easier for the government to collect data that would help combat terrorism. At the same time, the incredible evolution in technology over the past two decades has revolutionized both the tools available to the government for surveillance and those used by individuals to live their lives. 

“We’re living in the 21st century, but when it comes to issues concerning information technology, the law is still rooted in the 20th century,” says Anthony Romero, JD ’90, executive director of the American Civil Liberties Union (ACLU).

In striking a balance between constitutional rights, crime fighting, and national security, the legal doctrines at issue include everything from post-9/11 legislation that has given law enforcement access to electronic records, to constitutional rules governing criminal procedure, to the regulation of surveillance technology equipment by local governments.

Technology at the Local Level

The U.S. is a country of highways and cars, where Americans spend a lot of time behind the wheel. And tracking how we use our cars offers a picture of much more than simply our mode of transportation.

Automatic License Plate Reader/Recognition technology, ALPR, developed in the United Kingdom in the late 1970s, has been in use since the early 1980s as a tool to aid law enforcement agencies in various ways, from tracking stolen cars to identifying criminals. Since its introduction, this technology has become more powerful, mobile, and affordable. Today, more than 70 percent of police departments in the U.S. use some form of ALPR, recording thousands of plate numbers daily with cameras mounted on patrol cars and at key traffic areas such as highway overpasses and street lamps. 

While capturing the license plate information, ALPR can also capture photos of the cars—and often the occupants, as well as where they live, where they shop, and where they drive. Put together, this technology can tell a story of how we go about our daily lives. 

“Civil liberties problems arise when you engage in the mass tracking of hundreds of millions of Americans, most of whom are completely innocent of any wrongdoing,” says Catherine Crump, JD ’04 (BA ’00), who joined the Berkeley Law faculty this year as an assistant clinical professor of law and associate director of the Samuelson Clinic. She explains that technology is enabling the mass collection of data that can paint a detailed picture of how we interact, gleaning facts about us that the state couldn’t previously collect.  As data storage has become more available and affordable, police departments are increasingly sharing gathered data regionally, and with the federal government, creating large databases of citizens, most of them law-abiding.

“No one denies that a license plate reader can be a useful investigative tool and it’s valuable to law enforcement to be able to check to see if a particular vehicle is stolen or associated with a suspected criminal,” says Crump, who was a staff attorney at the ACLU focusing on issues of government surveillance until earlier this year. “The civil liberties objection arises when law enforcement starts to pool massive amounts of location data and keep it for long periods of time based on the mere possibility that it might be useful someday. Because then you have a large database tracking people’s movements and that’s the type of information that can be misused.”

• Watch a CSPAN report on Technology and Police Surveillance
• View a panel discussion about WikiLeaks

And currently, there are few regulations for how the data is used and how long it can be kept. 

“There are no generally applicable laws placing limits, there are no federal laws,” she says. “In general it’s up to each state and law enforcement agency to come up with its own rules.”

Crump cites a few states that have introduced legislation for ALPR, including Utah, Maine, and New Hampshire, noting that it is largely a nonpartisan issue.  

“It’s an issue where people on the left and right can find common ground between civil libertarian and law enforcement interests because everyone agrees that there are legitimate uses of the technology,” she says. “So the objections are not to the technology, but to certain uses.”

Crump thinks it important for all Americans to carefully consider these issues now, as new technologies are increasingly used by local law enforcement and the federal government.

“We should project forward to a world where it is possible to install a license plate reader on every street lamp,” she says. “And we should start planning for a world where that type of omnipresent surveillance is possible and figure out how we feel about it. And if people agree with my general view that that type of surveillance can be oppressive, it’s time to put rules and regulations in place to ensure that we take advantage of the positive aspects of this technology without suffering an undue loss to our civil liberties.”

Catherine Crump, JD ’04 (BA ’00)

New surveillance capabilities also raise concerns about how powerful investigatory tools typically reserved for investigations of criminal organizations may now be turned against certain communities.

“The government has a particular security interest in Muslim communities in the United States and abroad, yet these communities rarely have the political clout to resist overbroad surveillance,” says Shirin Sinnar , JD ’03, an assistant professor of law at Stanford.

• Watch a CSPAN report on Transportation Security
• Watch Sinnar speak about airport profiling

Sinnar has written about the devastating mistakes made in associating people with terrorist activity in the United States––errors that have resulted from prejudicial attitudes, insufficient oversight, and lopsided incentives to err on the side of security. She has also noted cases in which the pervasive mapping, surveillance, and investigation of Muslim communities have “significantly harmed their ability to practice their faith and express their views.”

Crump offers an example of police surveillance of mosques. She explains that in 2012 as part of a program to gather information on the city’s Muslim community, the New York City Police Department mounted cameras directly outside of city mosques and used license plate-reading technology to record the identities of attendees and the cars they arrived in. 

Although some of these practices have since been challenged in court, few have been resolved, Sinnar says. Most are dismissed for lack of standing or because the government invokes a national security-specific “state secrets” privilege, impeding any resolution of the constitutional questions at stake.

Reining in Mass Collection of Personal Data

In 2011, an unnamed telecommunications company received a demand from the Federal Bureau of Investigation (FBI) to hand over records about a customer (or customers). The demand came in the form of a National Security Letter (NSL), a type of legal demand that doesn’t require a court order and allows federal law enforcement to obtain information from telecommunications and Internet companies about their customers. NSLs have been issued by the government since about 1978, but the USA Patriot Act, passed overwhelmingly by Congress in 2001, greatly expanded their use. Critics have argued that the procedure raises major problems because NSLs lack judicial oversight and are almost always accompanied by a nondisclosure provision that prevents the recipient from revealing that it has received such a letter.

The company, whose name could not be revealed because of that secrecy order, challenged the NSL in court, arguing that both the nondisclosure provision and the limited judicial oversight were unconstitutional. 

In March 2013, Judge Susan Illston, JD ’73, a federal district court judge in San Francisco, ruled that the statute authorizing the NSL violates the Constitution. In her decision, In re: National Security Letter , she wrote that even when “no national security concerns exist, thousands of recipients of NSLs are nonetheless prohibited from speaking out about the mere fact of their receipt of the NSL, rendering the statute impermissibly overbroad and not narrowly tailored.” She acknowledged “significant consti tutional and national security issues at stake” and stayed her order to allow an appellate court to weigh in. The case was argued before the Ninth Circuit in October.

The case is one of a number of ongoing challenges to legislation that has expanded the government’s ability to access private data since the 9/11 attacks. Separately, the ACLU filed a lawsuit (now before the Second Circuit Court of Appeals) that challenges the government’s program of collecting phone records of all Americans under the Patriot Act. “It’s the first suit that hasn’t been kicked out because, thanks to Snowden, we can now establish standing—that is, show that the American public has been the subject of surveillance,” says Romero, who has met with Snowden twice in Moscow and is assisting with his legal counsel through the ACLU.

• Read Romero’s Huffington Post article about Edward Snowden
• Watch Romero speak about the ACLU
• Watch Anthony Romero on the Colbert Report
• Watch a symposium presentation with Anthony Romero

Meanwhile, some members of Congress are pushing to revise the Patriot Act in light of recent developments. Under pressure from the public as well as many Internet and telecommunications companies, Congress is considering limiting surveillance with the USA Freedom Act. While the House and Senate passed differing versions of the bill, both versions propose to rein in the collection of data by the NSA and other government agencies. The aim is to increase transparency of the Foreign Intelligence Surveillance Court (FISC), a federal court established under the Foreign Intelligence Surveillance Act (FISA) of 1978 to oversee requests for surveillance warrants against suspected foreign agents inside the United States. The FISC’s powers were extended under the Patriot Act to include domestic information collection when relevant to a counterterrorism investigation. The act also calls for narrowing of the requirement that businesses hand over customer data to the government and the creation of an independent constitutional advocate to argue cases before  the FISC. So far, the bill is pending. 

“The Senate version of the bill goes much farther than the tepid House version in strengthening the system of checks and balances and ensuring greater government transparency, but we still need to look more stringently at the operations of the judicial system and the oversight mechanisms of Congress,” says Romero.

With deadlines approaching, Congress is likely to act. “In June 2015, section 215, the law under which the phone records collection is happening, is set to expire. Congress will have to address the concerns raised by the telephony metadata program before then,” says Laura Donohue, JD ’07, professor of law at Georgetown Law, director of Georgetown’s Center on National Security and the Law, and co-director of the Center on Privacy and Technology.  

National Security and Personal Privacy

In designing national security laws, the challenge for policymakers is to strike the right balance, says Jennifer Granick , civil liberties director at the Stanford Center for Internet and Society . “The big-picture issue is how do we protect national security and conduct foreign intelligence without creating a surveillance state,” she says. 

• Watch a CIS video on the “surveillance state”
• Watch a video on civil liberties in the post-Snowden era
• Watch Granick speak about NSA surveillance

Referencing the NSA’s program to obtain email and other private communications from Internet companies, she explains that “the government is engaged in a huge ‘dragnet’ in which an immense amount of information is getting sucked in about Americans as well as foreign targets. That raises all kinds of statutory and privacy questions. Is the law appropriate? Is the government collecting and using data lawfully and appropriately? Do we protect the rights of foreigners? When they get information about Americans, what do they do with it?”

“The three branches of the government were asleep at the switch when it came to protecting fundamental freedoms and privacy in the post 9/11 era,” says Romero. “The courts rubber-stamped the overzealous collection of data by the executive branch, and Congress exercised only limited oversight.”  

Romero maintains that such acts have challenged not only the Fourth Amendment, which prohibits unreasonable search and seizures, but also the First Amendment, which prohibits the abridging of free speech and of the practice of religion. 

“People who realize they’re being surveilled are less likely to write emails, place phone calls, and express themselves freely if they know they might be caught in government surveillance,” he says. “This will fundamentally change the way we live in our democracy.”

Granick asserts that a key priority should be ending government spying based on secret interpretations of law. “We don’t really know what laws the executive branch is following or how the Fourth Amendment and statutes already on the books are being interpreted. There’s an immense amount of classified information, including court opinions,” she says, referring to secret decisions of the FISC.  

The Fight for Internet Freedom — featuring David Drummond, JD ’89 and Google VP

Ivan Fong, JD ’87, former general counsel of the Department of Homeland Security (DHS) agrees that data collection has to stay within constitutional limits, while lauding the importance of intelligence in national security investigations. “A certain amount of intelligence collection is, of course, necessary for the president to fulfill his constitutional duties and to act as commander in chief,” he says. “In a number of cases in which I was involved, the intelligence indeed played a significant role in preventing or disrupting actual terrorist threats.” 

Fong   is also sympathetic to civil liberties concerns. From 2009 to 2012, Fong was responsible for all legal determinations and regulatory policy at DHS. He provided legal counsel to the secretary of homeland security on questions of counterterrorism and national security law and policy and of cybersecurity law and policy. Fong believes current intelligence surveillance can both be lawful and serve our national security interests. 

“Such collection should be, consistent with the law, as narrow as possible—in other words, a process known as minimization—and we should search for and embrace any new technological and other means to ensure stronger protection of privacy, civil rights, and civil liberties interests.”  

Still, he agrees that courts, legislators, and policymakers “need to carefully articulate the core principles at stake to ensure outdated legal constructs or paradigms are reassessed in view of the new technology.” Fong points to the recent Supreme Court decision requiring police generally to obtain a warrant to search the contents of cell phones seized during an arrest as a good example of a case that updates existing legal doctrine in light of the power of new digital tools. 

Riley : Redefining the Limits of Legal Search

That decision [Riley v. California , which the Court decided along with a related case, U.S. v. Wurie ] recognizes that privacy in a digital world may require new rules and “brings the Fourth Amendment into the 21st century,” says Jeffrey Fisher , professor of law at Stanford and co-director of the Supreme Court Litigation Clinic .

• Fisher discusses Riley v. California
• Watch Fisher talk about arguing cases in the Supreme Court

It was Fisher who argued Riley before the Supreme Court in April, supported by the research and brief writing of his clinic students. The clinic represented David Riley, a college student currently serving a prison term in part due to evidence found on his cell phone that linked him to gang activities and a drive-by shooting. 

In general, the Fourth Amendment allows police to search items that are found on a person who has been arrested, which could include a cell phone. But until Riley and Wurie, it wasn’t clear whether that right extended to police reading and reviewing data stored on the phone—before first obtaining a warrant.

“We argued that smart phones are categorically different from any other kind of non-digital object that can be found on a person because of the vast quantities of sensitive personal information involved and we argued that they should therefore not be subjected to search without a warrant,” says Fisher. Because the Supreme Court agreed with that argument unanimously, handing down its decision in June, in the future police will be able to seize but not search cell phones until a warrant has been obtained. Riley himself may be entitled to a new trial that excludes the cell phone evidence, which was obtained without a warrant.

The implications of the case could go well beyond the context of law enforcement and cell phones, and Fisher argues it will have implications in the national security context. “The Riley decision essentially rejects the argument that the government is currently using to justify the NSA’s collection of data on individuals, which is that digital data is subject to the same legal rules as analog data,” says Fisher.  

The case also resolved a tough question about how to apply long-standing legal standards to new technologies. “This is a game changer, showing that the Court agrees that information gleaned from digital devices can paint a portrait of us that creates privacy considerations that didn’t exist before,” says Fisher.

Professor Jeffrey L. Fisherdiscusses the work he did with Stanford Supreme Court Litigation Clinic students preparing for the important digital privacy case. Revisiting Third-Party Privacy Protection

One of the most serious places where the law has gone awry relates to the third-party doctrine, says Jonathan Mayer, JD ’13, a doctoral student in the computer science department who has taught Computer Security and Privacy at Stanford Law School.

According to Robert Weisberg , JD ’79, the Edwin E. Huddleson, Jr. Professor of Law, that legal theory, which evolved in the 1970s, holds that people do not have a reasonable expectation of privacy in information volunteered to third parties, such as banks, phone companies, and perhaps even email services. Without that expectation of privacy, the government may constitutionally obtain information from third parties without a warrant.

“It’s an anachronistic doctrine, because these days we give all sorts of private information to third parties, including cloud services. That’s the modern way of life, and the law needs to catch up,” says Mayer, whose online Stanford University course Surveillance Law this fall explores how U.S. law facilitates electronic surveillance—but also substantially constrains it.

“Given the changes in technology over the past few decades, we definitely need new laws that revisit the third-party doctrine of Fourth Amendment concerns,” affirms Weisberg.

This past spring, Weisberg guided students in a policy practicum to prepare a background study of legal and policy issues regarding state law enforcement access to user records held by communications companies. The study, done for the California Law Revision Commission, considered civil liberties, public safety, and the scope of federal preemption.

“Our recommendation was that statutes imposing a warrant requirement be established for law enforcement access to user records of cell phone providers, Internet service providers, social media companies, and other mobile and Internet-based communication providers and that they be very specific about what they do and do not allow,” says Weisberg, who is co-director of the Stanford Criminal Justice Center. 

Such a revision in California statutory law, Weisberg explains, would address some problems, at least at the state level, with the Electronic Communications Privacy Act (ECPA), a federal regulation regarding the government’s ability to intercept electronic communications and to demand disclosure of stored communications, customer records, and other user data. ECPA has been criticized for failing to sensibly protect communications and consumer records, mainly because the law is so outdated and out of touch with how people share, store, and use information today.

Drones Coming Home

Use of unmanned aerial vehicles, or drones, by the military has increased dramatically as part of the effort to combat terrorism overseas. But use of drones in the U.S., for a variety of purposes, may also be on the rise.

High-altitude drones can hover over cities for long periods of time and record everything that takes place. But they are not widely adopted yet because the FAA has largely prohibited their use due to safety concerns with airplane traffic. But after passage of a provision in the FAA Modernization and Reform Act of 2012, drone use in the United States looks likely to increase. The act calls on the FAA to integrate unmanned aircraft by 2015 and to start by relaxing restrictions. Drones are already used to patrol the Mexican border and increasingly by businesses including agriculture. And local law enforcement agencies are now also exploring how they might be applied to crime fighting. Here again, new technology useful to law enforcement is raising questions about surveillance and mass collection of data, with regulations to safeguard the civil liberties of citizens not yet in place. 

“Drones’ ability to track people and their movements raises huge privacy concerns,” says Romero. “There’s a serious lack of oversight on how they are being deployed and used, where data is being accessed and stored, and who has access to it.” 

And the public seems to agree. Crump offers examples of two cities that have purchased drones but have then backtracked: Seattle and San Jose. “When the purchase of drones becam e public, there was an uproar, with residents raising privacy concerns,” she says. In each case the program was shut down. “I think the idea of unmanned airborne vehicles hovering over people’s backyards and peering into their windows makes people deeply uncomfortable. Drones challenge people’s notions of privacy in a way that few other technologies have.”

A key concern with the introduction of this new surveillance technology is the lack of public review and consultation. “I think this raises important questions about the democratic process,” says Crump. “It’s what is known as ‘policymaking by procurement.’ Police departments simply acquire this equipment, often with funding from the federal government. And then they use it and it takes months or years for local government and the public at large to even learn about it.” 

One exception—now—is Seattle. The city council passed an ordinance last year requiring the police department to first notify the council about surveillance purchases and to come forward with a proposal about how the information collected will be used.

Correcting the balance among social controls, governmental responsibilities for security, and individual liberty will require the public, Congress, and the courts understanding and navigating a maze of practices and policies, says Granick. “Over-classification, secret law, and intelligence jargon are getting in our way,” she says. 

In reflecting on the secrecy regarding surveillance law and lack of robust oversight, Donohue observes, “The founders of the Constitution understood very deeply that not only must the government control the governed—but we must ensure that the government controls itself. Concentration of power in the hands of the few is the very definition of tyranny that the founders held—and that’s what we want to protect against, as we face issues of how government surveillance is being conducted in theglobal digital age.”  SL

1 Response to “ Civil Liberties and Law in the Era of Surveillance ”

Maureen coffey.

“Can the law keep up with technology?” Yes and no. It was actually never the law (in my opinion) that could not keep up with technology, it was always a problem of detection and hence enforcement. This battle between crime investigation and enforcement never lacked legal framework. Poisoning (except by kings …) was always a crime, yet not all poisons were detectable. The invasion of privacy is a crime, but the means to do it are fast moving beyond enforceable detection. The more technology advances and no tangible damage can be seen (no broken windows, no finger prints, no “losses” – i.e. all passwords are “still there”) the less can law enforcement do about it. Once nano technology and quantum computing are advanced enough, we may not even know of any “intrusions” nor will the perpetrators themselves know (!) that in turn THEIR perimeters have been breached. Which may lead to interesting avoidance techniques by individualistic individuals that remind one of Amish lifestyles …

Comments are closed.

Civil Rights and Civil Liberties

Differences.

Civil rights and civil liberties have been used interchangeably as many people confuse them to be the same thing while they are two different terms with different means. However, they both ensure individuals’ rights, the big difference being whether the government will take action or not. Civil rights call for the government to act and ensure all the citizens get equal treatment without discrimination based on gender and race, where people are barred from accessing public services or jobs they had applied for. The government needs to intervene and ensure that such cases will not happen as we are all equal, against civil rights (Theoharis, 2018). In contrast, civil liberties are designed to protect the citizens from the government by limiting its actions; a good example is the freedom of speech which every citizen should practice. Civil rights deal with legal protection that arises from the cases of equality and discrimination, which lead to action of injury; they are not Bill of Rights. On the other hand, civil liberties are termed personal freedoms as the Bill of Rights protects citizens. Civil rights and civil liberties have come a long way since the civil war going through phases of amendments; though different, they have the fundamental interest of every individual at heart.

Civil rights give citizens the right to equal and fair treatment to government services, as stated in the US constitution. These civil rights are granted to the citizen through the 14 th  amendment of the constitution, which took place after the civil war to protect the victims of slavery and the civil war; the Civil Rights Act of 1964 further expanded these rights to equal application of the law to every citizen (Hersch & Shinall, 2015). Cases of gender, race, religion, tribe and sexual orientation come into play which are the main fields where people tend to face a lot of discrimination and unfairness, with one group of people treating others like inferior. The rights call for equal treatment of everyone in public facilities, public education, employment, government services, and housing. When discrimination happens, the judiciary system will come in place and place the correct charges on the oppressor. The world contains people of different characters, with some emulating characters from the societies they were raised from, adopting ill behavior due to bad companies. Some go through other experiences like abusive parents and bullying, turning people’s lives entirely. All these people are in the same society, and a sound system needs to be in place to keep everyone in check no matter the community they come from or the experience they have been through; it is the place of Civil rights to keep society in check, and government action is a vital part of the process a good case study (Bonilla & Rosa, 2015), in the United States vs. City of Ferguson after the shooting of Michael Brown by the police.

Civil liberties, on the other hand, as civil rights keep society in check, are used to keep the government in check. Both the three arms of government interchangeably keep each other in check. The same case happens with civil rights and civil liberties. Civil liberties are certain rights that the government should not interfere with; they are granted by the Constitution and the Bill of Rights to the citizens (Barker et al., 2018). When practicing these rights, people are given the freedom to express themselves without defaming anyone, which is one of the few guidelines. Civil liberties are essential and direct; they include freedom to vote, defending oneself, religion, due process, expression, privacy, speech, press, assembly, marrying, and owning property. Civil liberties were put in place to limit the government’s power from oppressing its citizens. A good case study in New York Times Co vs. the United States took place in1971 when Nixon prevented the company from publishing secret documents (Fernández, 2021). The judiciary, which keeps the executive in check through the supreme court, ruled the act against the freedom of the press as per First Amendment. Civil liberties are put in place to protect people from the government by limiting its actions giving the citizens many rights and freedoms.

In conclusion, civil rights and civil liberties through different should have a good code of ethics that provides society with equality and equity that keeps disorienting every day. They should ensure everyone is treated as the law prescribes, and offenders should be well charged as a lesson to them and other people who want to perform such acts. Gender, racial and sexual assaults have affected society to the extent of even the police killing people of color, its such acts which need to be kept in check, and people taking responsibility for their actions. Good awareness should be created around civil rights and civil liberties to fight the offenses against people’s rights. When society is included in maintaining law and order, it becomes easy for people to report cases or incidents that happen in the communities they live in while people stay silent as other people suffer from discrimination and domestic violence. The constitution’s rights and liberties are vital cornerstones to fighting against discrimination and bias against other people.

Creating balance

The balance between liberties and security has been very delicate in the history of the United States. Criticism has been raised as the government attempts to protect citizens from insecurity and terrorism cases, uses much force, and breaks many civil liberties. Civil liberties, as per the Bill of Rights, grant people the right to privacy, and at the same time, it calls for the government to keep the citizens safe (Waldron, 2017). The government relies on information and intelligence to perform and maintain security while at the same time protecting the countries interest. An excellent example of balancing civil liberties and security is during 9/11, where national security is accused of using interrogations and wiretapping against civil liberties and human rights. Keeping citizens safe and respecting their right to privacy is turning out to be a nightmare that the government and the national security are having trouble delivering and balancing.

Keeping the citizens safe, national security will need a good source of information and intelligence that will help detect any threats before they escalate and turn to a disaster that is hard to control (Cohen–Eliya & Porat, 2017). The case of 9/11, where almost 3 thousand lives were lost, was followed by a set of bills taking place the following year to create a suitable environment for sharing information. In 2004, Intelligence Reform and Terrorism Prevention Act were passed, where the president was mandated to develop an intelligence and information sharing environment concerning terrorism threats (Bazan, 2004). This information-sharing process should be conducted consistently and applicable with legal standards as per civil liberties and national security. The IRTPA Act states that in no way the process of information sharing and acquiring should break any of the citizen’s civil liberties, as was the case reported during the 9/11 terrorist attack. National security cannot solve evil by subjecting citizens to more evil and violence. Instead, they have legal standards to respect and answer to; failure to this law will take its course and charges placed. National security has the mandate to keep the citizens safe from any insecurity threats with all means necessary while upholding the correct legal standards and protecting their civil liberties.

People’s privacy is one of the critical freedoms in civil liberties, and they are entitled to the privacy of their lives and the information they share. While national security tends to break this right as they want to know what information someone is sharing, with whom, what the information has been used for, and whether they can even see it before it has been shared. That is the highest level of privacy introversions and can even cause more tension than the terrorist attacks, as people will be scared knowing that someone is watching their every move even before they make it. In 2005, an executive order was passed to strengthen the Sharing of Terrorism Information further and protect Americans; the order emphasizes respecting people’s privacy while using the information systems to disseminate any threats from the information they acquire (Bush, 2005). The order relates to the mitigation, disruption, detection, preemption, prevention of terrorist activities while at the same time cooperation of all the government authorities. The case of cybercrime has posed a significant challenge in respecting people’s privacy as criminals use the information and internet systems which is difficult to detect before the damage is done and without the anteversion of their privacy (Elkin-Koren & Haber, 2016). People suffer in the hands of bullying online due to a lack of proper regulation, and this calls for the national security departments to come up with appropriate ways to protect people from such evils taking a deep course in the society while at the same time respecting their civil liberties.

In conclusion, both the government and society should cooperate reasonably in fighting terrorism by creating good channels and an environment for sharing information. This process does not allow the government to invent the privacy of its citizens. Proper awareness should be made on how vital their information is needed to keep the country safe. National security should not practice torturing the citizens in the process of acquiring information as it is against human rights and at the same time taking us to the dark ages where people have even lost their lives for the country to be where it is today.

Safeguarding and Protecting

Civil rights and civil liberties are inherent possession of citizens and should not be treated as gifts from the government. The threats facing civil rights and liberties call for intervention to safeguard and protect them; this means creating a vital institution from the influence of the government to ensure citizens’ rights and liberties are guaranteed and well protected. The American Civil Liberties Union and the Office of Civil Rights and Civil Liberties have been in the front line fighting and safeguarding citizens’ rights and liberties. Over the past 100 years, ACLU has been the nation’s guardian of rights and liberties of every United States citizen as guaranteed by the Constitution and Bill of Rights; the union now has more than 4 million supporters, activists, and members located in every state of the country (Richards, 2015). The ACLU and Office of Civil Rights and Civil Liberties work in courts, communities, and legislatures to safeguard individuals’ rights and liberties; they fight to preserve and prevent liberties erosion.

The ACLU is famously known for the famous saying of their founder Roger Baldwin- “So long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.” The organization has fought countless battles even when courts that are supposed to protect people were silent (Weinrib, 2019). They have had some wins, which seemed impossible as discrimination was the norm of the day, whether based on race, gender, and other cases like LGBT, which was unthinkable during that time. Women got the right to vote in August 1920 after the ACLU had been formed the same year, as they fought to make sure the government delivered what was promised in the Bill of Rights, thanks to the LGBT have their rights now and can enjoy civil rights and civil liberties like other citizens (Cottrell, 2016). The union has been the cornerstone of Americans’ rights without discriminating against anyone, whether African-Americans and the case of 110,000 Japanese-Americans who faced concentration camps in 1942 after Japan had attacked the United States during the second world war (White, 2019). The ACLU, Office of Civil Rights and Civil Liberties, and the Department of Justice are regulars in the supreme court fighting for human rights and liberties. The ACLU is a nonprofit and nonpartisan union that does not receive funding from the government as they rely on grants and contributions to run the union.

However, through the efforts of the ACLU and the office of Civil Rights and Civil Liberties, safeguarding steps have been achieved; attainment of freedom during the Age of Technology, amending the Foreign Intelligence Act, whistleblower protection, preventing racial profiling, and improving the rights of people to practice religion. The unions have not had a smooth journey as they keep on facing attacks critics due to some of the groups they protect. In recent times, they have been asked to explain why they defend certain people, controversial groups, and entities like the Nation of Islam, the National Socialist Party of America, and the Ku Klux Klan (Donohue & Wildavsky, 2017). They killed an uncountable number of African-American people in the early 1900s as they also had strong members in the government. The unions, in their defense, say they do not defend the groups or individual actions but their right to free assembly and free expression as guaranteed by the constitution. The organization fights to prevent the erosion of civil rights and civil liberty (Satana & Demirel-Pegg, 2018). Whether criminals or good citizens, your rights and freedoms must be protected; although everyone will own the responsibilities of their actions, the law must be followed appropriately.

In conclusion, the ALCU and the Office of Civil Rights and Civil Liberties, through working in the courts, supreme court, and with communities, have brought the actual definition of rights and liberties to many citizens who were already willing to give up their rights and freedom in the name of national security. The unions have fought for many minority groups to have a voice in the country while keeping the government in check. Individuals’ civil rights and civil liberties should be well respected even in times of terrorism threats.

Homeland security

Department of Homeland Security came into existence during the 9/11 terrorist attacks on American soil. The aim was to protect the country from foreign terrorist organizations while coordinating and unifying the country’s security efforts. The challenges of terrorism have been evolving and taking new forms, with domestic attacks now causing many threats to national security (Radvanovsky & McDougall, 2018). The department had to adopt better-sophisticated ways to detect, protect against, prevent, and mitigate terrorist attacks before they happen in the first place. Through the attempts to protect the nation from terrorist attacks, the Department of Homeland Security has violated many citizens’ civil liberties. The cases of physical abuse are highly reported when the security departments try to acquire information from citizens or suspects in the name of national security and keep everyone from terrorist attacks (Alston, 2017). Countering terrorism securing US borders and cyberspace remains the primary duty of Homeland security, with civil liberties at the center of every step they take.

Terrorism is one of the many challenges facing the DHS in security matters. They use National Terrorism Advisory System to inform Americans and the Public about any threats. During this process of protecting the US from foreign attacks, the DHS has to secure the countries borders with cases of illegal immigration posing a significant threat. Reports have been filed on how the DHS violates civil liberties in an attempt to end the issue of illegal immigration (Sidhu & Boodoo, 2017). Dealing with cybercrime to protect cyberspace while avoiding privacy intervention is a tremendous challenge to the DHS, which calls for more sophisticated handling of the issue without violating any civil rights and liberties. Violation of rights of immigration enforcement, due process rights, and confidentiality rights are some of the main report violations on individual rights and freedoms. DHS has to look deeper into its tactics of handling terrorism and insecurity threats while at the same time respecting the rights and freedoms of the citizens as stated by the Bill of Rights and Constitution

The Office for Civil Rights and Civil Liberties have received public allegation and claims of discrimination and violation of many civil rights and liberties by the Department of Human Security. Discrimination based on ethnicity, sexual orientation, race, national origin, gender identity, religion, and disability are the prominent cases been reported by the public concerning Homeland security (Ritchie & Jones-Brown, 2017). The form of treatment you will go through depends on who you are, where you are from, lacking fairness in their system of acquiring information hance even escalating the cases of insecurity as they base their intelligence on the emotions you have against someone or group. Such actions violate people’s liberties as they suffer in the hands of the people who should be protecting them.

In conclusion, the Department of Homeland Security needs to be regulated to stop violating individuals’ rights and liberties while at the same time claiming to protect them from violence and terrorist attacks. The department should also have held their officers from violating citizens’ rights and liberties and have the proper law procedures to deal with those of do not adhere to the dignity of the departments. This mistreatment from the security forces leaves permanent scars in people’s lives, and some may end up having mental disorders; it is a critical department that needs to be kept in check and well regulated.

Alston, P. (2017). The populist challenge to human rights. Journal of Human Rights Practice, 9(1), 1-15.

Barker, L. J., Barker, T. W., Combs, M. W., Lyles, K. L., & Perry, H. W. (2018). Civil Liberties and the Constitution: Cases and Commentaries. Routledge.

Bazan, E. B. (2004, December). Intelligence Reform and Terrorism Prevention Act of 2004:” Lone Wolf” Amendment to the Foreign Intelligence Surveillance Act. LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE.

Bonilla, Y., & Rosa, J. (2015). # Ferguson: Digital protest, hashtag ethnography, and the racial politics of social media in the United States. American ethnologist, 42(1), 4-17.

Bush, G. (2005). Executive Order 13356: Further Strengthening the Sharing of Terrorism Information to Protect America. Washington, DC, The White House, October, 25, 20051025-5.

Cohen–Eliya, M., & Porat, I. (2017). American balancing and German proportionality: The historical origins. In Rights: Concepts and Contexts (pp. 463-486). Routledge.

Cottrell, R. (2016). Roger Nash Baldwin and the American Civil Liberties Union. Columbia University Press.

Donohue, W. A. (2017). Twilight of Liberty: The Legacy of the ACLU. Routledge.

Donohue, W. A., & Wildavsky, A. (2017). The Politics of the American Civil Liberties Union. Routledge.

Elkin-Koren, N., & Haber, E. (2016). Governance by proxy: Cyber challenges to civil liberties. Brook. L. Rev., 82, 105.

Fernández Villaverde, A. (2021). Freedom of Press in the United States: How the New York Times Co. v. United States case changed the media.

Hersch, J., & Shinall, J. B. (2015). Fifty years later: The legacy of the Civil Rights Act of 1964. Journal of Policy Analysis and Management, 34(2), 424-456.

Radvanovsky, R., & McDougall, A. (2018). Critical infrastructure: homeland security and emergency preparedness. crc press.

Richards, N. (2015). Intellectual privacy: Rethinking civil liberties in the digital age. Oxford University Press, USA.

Ritchie, A. J., & Jones-Brown, D. (2017). Policing race, gender, and sex: A review of law enforcement policies. Women & Criminal Justice, 27(1), 21-50.

Satana, N. S., & Demirel-Pegg, T. (2018). Military Counterterrorism Measures, Civil–Military Relations, and Democracy: The Cases of Turkey and the United States. Studies in Conflict & Terrorism.

Sidhu, S. S., & Boodoo, R. (2017). US Case Law and Legal Precedent Affirming the Due Process Rights of Immigrants Fleeing Persecution. The Journal of the American Academy of Psychiatry and the Law, 45(3), 365-373.

Theoharis, J. (2018). A more beautiful and terrible history: The uses and misuses of civil rights history. Beacon Press.

Waldron, J. (2017). Security and liberty: The image of balance. In Civil Rights and Security (pp. 3-22). Routledge.

Weinrib, L. M. (2019). From Left to Rights: Civil Liberties Lawyering Between the World Wars. Law, Culture and the Humanities, 15(3), 622-655.

White, C. (2019). Bias and Guilt Before Innocence: How the American Civil Liberties Union Seeks to Reform a System That Penalizes Indigent Defendants. Alb. L. Rev., 83, 657.

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Home — Essay Samples — Law, Crime & Punishment — Civil Liberties — Civil Rights Vs Civil Liberties

Civil Rights Vs Civil Liberties

• Categories: Civil Liberties Civil Rights

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Published: Feb 12, 2019

Words: 517 | Page: 1 | 3 min read

Hook Examples for Civil Rights Movement Essay

• Redefining Equality: In the heart of the Civil Rights Movement, America experienced a profound transformation. Join us as we journey through the tumultuous era when a nation questioned its commitment to equality and justice for all.
• Jefferson’s Words, America’s Struggle: When Thomas Jefferson penned the words “all men are created equal,” he ignited a vision that would shape a nation. But how did this vision evolve into the Civil Rights Movement, and what lessons can we draw from this journey toward equality?
• Civil Liberties vs. Civil Rights: In the intricate web of rights and freedoms, where does one draw the line between civil liberties and civil rights? As we explore this distinction, we’ll uncover the pivotal moments that propelled the Civil Rights Movement forward.
• The March to Freedom: The Civil Rights Movement of the 1950s and 1960s was a relentless march towards justice. From Rosa Parks to Martin Luther King Jr., brave individuals made indelible marks in history. Let’s revisit the milestones that shaped a nation’s conscience.
• From Jefferson to Today: Our journey through civil rights and liberties reveals that the struggle for equality has evolved with the times. Explore how modern issues like same-sex marriage and gun control continue to redefine our understanding of freedom and justice.

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Civil Rights vs. Civil Liberties

By Lark Lewis, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed October 16, 2023

Legally Reviewed

This article has been written and reviewed for legal accuracy, clarity, and style by  FindLaw’s team of legal writers and attorneys  and in accordance with  our editorial standards .

Fact-Checked

The last updated date refers to the last time this article was reviewed by FindLaw or one of our  contributing authors . We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please  contact an attorney in your area .

The terms "civil rights" and "civil liberties" are often used interchangeably, but their meanings are distinct.  Civil liberties  are freedoms guaranteed to you by the Constitution to protect you from tyranny. One key civil liberty, for example, is the  First Amendment right  to freedom of speech.  Civil rights , in contrast, are the legal rights detailed in federal laws and statutes that protect you from discrimination. An example of a civil right is the right to be free from employment discrimination based on a protected factor.

You have the right to remain silent. You have the right to a fair court trial. You also have the right to vote and the right to privacy. Americans are generally familiar with these rights, but are they considered  civil rights  or civil liberties?

This article explores the differences between civil rights and civil liberties, with specific laws corresponding to each term.

Civil Rights

Civil rights concern the basic right to be free from unequal treatment based on certain protected characteristics. Civil rights are generally associated with protecting minority groups such as women and African Americans. Protected characteristics include:

• National origin
• Sexual orientation

Civil rights protect you in numerous settings. These include:

• Access to public facilities

A civil rights violation occurs in designated situations when a person experiences  discrimination  based on a protected characteristic. Discrimination can come in the form of segregation, for instance.

Most civil rights laws are established by the federal government through federal laws enacted by Congress or by case law. Many civil rights laws arose as a result of the Civil Rights Movement. Examples include the  Civil Rights Act of 1964  and the  Voting Rights Act of 1965 .

Federal courts — and especially the U.S. Supreme Court — play a big role in determining the extent of civil rights protections. Supreme Court cases often clarify, expand, or limit civil rights.

Civil Liberties

Civil liberties concern basic rights and freedoms that are explicitly guaranteed by the  Bill of Rights  and the U.S. Constitution or have been interpreted and inferred by legislatures or the courts. They offer protection from federal or state government action.

Civil liberties include:

• The right to free speech and freedom of the press, granted by the First Amendment
• The right to freedom of religion
• The right to remain silent in a police interrogation
• The right to be free from unreasonable searches, afforded by the Fourth Amendment
• The right to a fair trial and due process of law
• The right to be free from cruel and unusual punishment, granted by the Eighth Amendment
• The right to vote, afforded by the 15th Amendment
• The right to bear arms, granted by the Second Amendment

The 14th Amendment's due process clause provides the basis for civil liberties. In contrast, the equal protection clause provides the basis for civil rights.

The law differentiates between civil rights and civil liberties. Civil liberties concern the actual basic freedoms. Civil rights concern the treatment of a person regarding certain rights. Unlike  civil liberties , under which people enjoy broad-based rights, civil rights contain a protective aspect of those rights based on certain characteristics.

One way to consider the difference between civil rights and civil liberties is to consider:

• What right is affected
• Whose right is affected

For example, as an employee, you don't have the legal right to a promotion. This is mainly because getting a promotion is not a guaranteed civil liberty. However, as a female employee, you have the legal right to be free from discrimination in being considered for that promotion. You can't legally be denied a promotion based on your gender or any other protected factor. By choosing not to promote a female worker solely based on gender, an employer commits a civil rights violation. In doing so, the employer engages in unlawful employment discrimination based on sex or gender.

Contact a Civil Rights Attorney for Help With Your Legal Claim

Knowing the difference between civil rights and civil liberties can help to determine whether you have a civil rights claim. Do you think your human rights have been violated? You have a right to equal protection of the law. Consider speaking with a civil rights attorney near you to  better understand your legal options  and protect your individual rights.

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• September 2024

The monthly magazine of opinion.

“Civil Liberties,” 1952—A Study in Confusion:Do We Defend Our Rights by Protecting Communists?

_____________

Heard ye not lately of a man That went beside his witt, And naked through the citty rann Wrapt in a frantique fitt?

The above tantalizing bit of 17th-century verse was quoted recently in the London Times Literary Supplement , in the same issue in which there appeared, elsewhere in its pages, a review of the English edition of Alan Barth’s The Loyalty of Free Men . This fortuitous juxtaposition was not without its ironic relevance, Mr. Barth’s book having been provoked by the “frantique fitt” of McCarthyism, beneath which he saw a cool and calculating assault on the American democracy, and his defense being couched in a cool and calculating eloquence that turns out, upon close examination, to be not nearly the exercise in pure reason it seems.

A close examination, however, Mr. Barth’s book and others of its kind have not received. It was hardly to be expected from Senator McCarthy and his friends, who are less famous for their habits of meticulous reading than for their preference for arguing in the large, while the more scholarly sections of American opinion have been so delighted to see the Senator get his, and so soothed by the cadences of a familiar tone, that they have not so much read these books as permitted themselves to be enchanted by them. This enchantment has had its political sequel, for as a result of it there has been drawn a line of battle. On the one side are the men of intellect and sensibility, fair-minded and generous-hearted and confessedly not infallible: the Alan Barths, the Henry Steele Commagers, the Zechariah Chafees, the Howard Mumford Joneses, the Ralph Barton Perrys, the William O. Douglases, and, rather more tentatively committed, the Francis Biddies. On the other side are the mindless men, the kind who get elected to office when the spirit of the age reverts to primitivism, and who wish, under cover of fighting Communism, to squeeze the nation into a Know-Nothing straitjacket.

The line is drawn—and those liberals who have rallied to their positions on the left of it find themselves ever more pressed against the outer walls of the city. The ready quotations from Jefferson about the trees of liberty and the blood of tyrants, the sonorous repetition of Justice Holmes’ dissenting opinions, the schoolmaster’s measured accents alternating with prophetic indignation—the whole battery has failed significantly to make an impression on the dominant American mood. Senator McCarthy remains blithely on the offensive and his critics give ground before him. It is a most exasperating and melancholy situation for liberals to be in; yet in proportion as they fail in strength, they gain in their sense of petulant righteousness.

Is it conceivable that the line was incorrectly drawn in the first place? The liberals are loath to weigh the possibility lest it give comfort to the enemy; Senator McCarthy for his part has no cause for dissatisfaction with things as they are; but those of us who are the displaced persons of this war might reflect on this question to our advantage. Perhaps it is a calamitous error to believe that because a vulgar demagogue lashes out at both Communism and liberalism as identical, it is necessary to protect Communism in order to defend liberalism. This way of putting the matter will surely shock liberals, who are convinced that it is only they who truly understand Communism and who thoughtfully oppose it. They are nonetheless mistaken, and it is a mistake on which McCarthyism waxes fat. For there is one thing that the American people know about Senator McCarthy: he, like them, is unequivocally anti-Communist. About the spokesmen for American liberalism, they feel they know no such thing. And with some justification.

With what justification, can be seen from an illustrative incident involving Professor Henry Steele Commager, a distinguished historian who never was a Communist and never will be. In the May 1947 issue of Harper’s , Professor Commager wrote a spirited article that began as follows:

On May 6 a Russian-born girl, Mrs. Shura Lewis, gave a talk to the students of the Western High School of Washington, D. C. She talked about Russia—its school system, its public health program, the position of women, of the aged, of the workers, the farmers, and the professional classes—and compared, superficially and uncritically, some American and Russian institutions. . . . Mrs. Lewis said nothing that had not been said a thousand times, in speeches, in newspapers, magazines and books. She said nothing that any normal person could find objectionable.

What greatly disturbed Professor Commager was that this inoffensive speech did give rise to a furor in Washington. Congressmen bellowed that our schools were being subverted, the principal of the school came forward with a humble apology, the superintendent of schools for the nation’s capital swore it would never happen again, and the speech itself was reprinted (after some discussion of the wisdom of exposing the public to inflammation) in the Congressional Record as a horrible example. Professor Commager saw in this a reflection of an anti-Communist hysteria that threatened to engulf all civil liberties, and he pleaded earnestly that reason control the anti-Communist passion, lest we find ourselves saddled with an anti-Communist orthodoxy no less reprehensible than the Communist one. His article was hailed as a kind of liberal manifesto, and was reprinted—alongside John Stuart Mill and John Milton—in Howard Mumford Jones’ Primer of Intellectual Freedom (1949). Evil won a transient victory in the seats of power and Good won a permanent niche in the anthologies—a familiar tale.

Familiar, that is, until one goes to the Congressional Record and reads through this speech that no “normal person could find objectionable.” Mrs. Lewis’ English was broken, but her sentiments were whole:

They call it collective farm—the peasants farm and divide up products according to work put in by each individual during the years. As a result of planning, unemployment is completely wiped out. . . . In Russia right now people absolutely do not worry about today or tomorrow. They never think ‘All of a sudden I lose a job.‘ That fear doesn’t exist among Russian people. . . . No matter where you live you have to work. What the Russian people have, they are more secure about this. They work. They need not worry much about losing the job. They are free to travel from one place to another, and each person must work 25 years for after that he is able to get a pension. No matter where you work—in this plant or another, 25 years and then you get 50% of your salary and live the rest of your life. . . . I never appreciated the life in Russia until I live here. Here you have to work hard in order to live, use all your courage not to die. . . I read all the papers here and occasionally I go to the Library of Congress and read all papers printed in Moscow. It is very interesting, and when I read these papers always you can see here evidence of press where people talk all the time about having a war, to throw the atomic bomb on Russia, to destroy because they have a system which is very prideful. At the present time Russians are busy to restore all those houses, all those cities, all those towns. Russian people make streets, plants, produce new style of shoes, new fashion of dress, new production, and never they talk about having a war.

The echoes this awakened in Congress may have been exaggerated, but they were not factitious or beside the point. Obviously, Professor Commager can argue that it will not harm American school children to encounter an occasional Communist apologist in the flesh; one may even go further and say it would do them good. However, in the first place, Mrs. Lewis was not introduced as a Communist apologist but as an informed reporter, and, in the second place, everything she said should have been objectionable to every normal person, and especially to a historian like Professor Commager—for the good and sufficient reason that it was a tissue of lies. For Professor Commager to defend the rights of Communists to free speech is one thing, for him to assert that there is nothing objectionable in mendacious pleading in support of Communism is quite another. The conclusion “any normal person” will draw from such behavior is that, for whatever reason, his critical faculties are less alert when he looks out of the left corner of his eye.

Indeed, the heart of the matter is exactly that he looks at Communism out of the left corner of his eye. Professor Commager seems to be seduced by the insidious myth according to which Communism is a political trend continuous with liberalism and democratic socialism, only more impatient and inclined to the fanatical, only more “radical” than its companions who are not quite so “left.” It is a myth that Senator McCarthy, for his own ends, is happy to accept, since it allows him to tag a New Dealer as being by nature an embryonic Communist. Neither the Professor nor the Senator is concerned to see that the antithesis of “left” and “right” no longer suits the political realities; that measured by the ideals of the French or even Russian Revolution, Communism today is as counter-revolutionary as Louis XVI or Kolchak ever was; that if one wishes to defend the civil liberties of Communists (as the Senator does not), one must do so on the same grounds that one defends the civil liberties of Nazis and fascists—no more, no less.

Professor Commager might retort that he knows all this full well, and that he is for civil liberties for everyone, fascist, Communist, or what-have-you. But if a Nazi had, in 1938, addressed a high-school audience in this country, extolling the accomplishments of Hitler’s regime, presenting a thoroughly fictitious account of life in Nazi Germany, never once mentioning the existence of concentration camps—would Professor Commager find in such a speech “nothing that any normal person could find objectionable”? It is doubtless an injustice to him even to conceive of the possibility.

This notion of Communism as “left” and therefore at an opposite pole from fascism, which is “right,” appears to have become intrinsic to the liberal outlook. It is imbedded in the meretricious historical analogies, in the rolling phrases about “the forces of freedom and those of fear,” beneath which there lies the gross metaphysic of the liberal Manichee, apportioning the universe to “forward-looking” and “backward-looking” demiurges. It helps explain how Professor Commager can permit himself to write: “After all, it is no accident that the nations dedicated to freedom won the two great wars of the 20th century and those committed to totalitarianism went under”—when it is not only no accident, it is not even a fact. The same notion is evidenced in Zechariah Chafee’s explanation (in his essay in the recent symposium Civil Liberties Under Attack ) of the origin of Communist fronts: “It is inevitable that the membership of organizations formed to bring about change should include some persons who want a great deal of change”—as if Professor Chafee and the Communists were agreed on the direction of the change, quarreling only over the measure. It is the presupposition from which Ralph Barton Perry (in his new book The Citizen Decides ) can deduce that Communism is “democratic” by virtue of being a revolt of the “masses” against the “classes,” that the Soviet regime is a government “for the people with the consent of the people” though not by the people, and that the Chinese Communist leaders are “hostages” of a popular revolution.

Moreover, after staring out of the left corner of the eye for any length of time, there comes an irrepressible inclination to wink. How else explain, for instance, the attitude Alan Barth takes toward the Hiss-Chambers affair? He can begin a sentence: “Insofar as Chambers may be credited with having told the truth. . . .”; or: “whatever the guilt of Alger Hiss and whatever the utility of exposing it and punishing it a decade later. . . .” About Whittaker Chambers and the Communist “informer” in general, he is no longer judiciously bland but is knowingly tart: “The ex-Communists, conscious of their betrayal of American values, wanted the comfort of company; they had to show that many others, even many who were highly respected, had been as recreant as they.” In other words, Chambers in telling the truth is a man of malice, Hiss in denying it is his defenseless victim. Hiss’s guilt is problematic and, in any case, not important; Chambers’ wickedness is certain.

On Owen Lattimore, there is liberal unanimity: he got a raw deal. Professor Commager believes (in his contribution to Civil Liberties Under Attack ) that the attack on Lattimore was an attack on “independence and non-conformity.” Professor Chafee laments: “Owen Lattimore did his own thinking and look how his services were appreciated.” Alan Barth is casually positive: “Dr. Lattimore’s ordeal was, of course, only the most spectacular instance of legislative punishment of teachers for expressing their opinions.” About the worst that can be said for such arrant nonsense is that it is uttered in all sincerity. For the incontrovertible facts of the case are, “of course,” that Owen Lattimore did not do his own thinking; that his “ordeal” was the public demonstration of this fact; that he was a faithful and enormously influential fellow-traveler who for more than a decade followed the Communist line as if magnetized by it, including a docile zig-zag during the Stalin-Hitler pact. Is it really no legitimate concern of Congress that such a man was appointed advisor to Chiang Kaishek, that he accompanied Vice-President Wallace during his tour of Asia, that he was admired and listened to by important people in the State Department?

In his denunciation of Lattimore’s pro-Communist record and in hurling unsubstantiated charges against him (chief of Soviet espionage, etc.), Senator McCarthy may well have been aiming a blow against independence of mind and nonconformity of spirit. For Messrs. Commager, Barth, and Chafee to defend Lattimore’s pro-Communist record in order to defend such independence and nonconformity, is for them to play the Senator’s game, on the losing side.

It is equally futile for liberals to try to match Senator McCarthy’s irresponsible declamations with a crafty rhetoric of their own, especially when this rhetoric, while not designedly pro-Communist, is compelled by the logic of disingenuousness and special pleading to become so in effect. The need for disingenuousness arises out of a refusal to see Communism for what it is: a movement guided by conspiracy and aiming at totalitarianism, rather than merely another form of “dissent” or “nonconformity.” Hence the liberal argument runs askew of reality and must clothe itself with neat obfuscation.

Once again, Professor Commager obliges with a superior specimen:

The House Un-American Activities Committee has launched an attack on the Lawyers’ Guild as a pro-Communist or ‘subversive’ organization. The chief basis for this attack is, as far as we know, that the Guild has proffered its services to the defense of Communists under indictment for violation of the Smith Act. We need not inquire into the accuracy of this charge or into the degree of zeal displayed by the Lawyers’ Guild. Let us ask rather what are the logical conclusions to be drawn by the position which the House Committee has adopted? They are two: that certain criminals are so despicable that they are not entitled to counsel, and that a lawyer who defends a criminal is himself sympathetic to crime.

That phrase in the second sentence, “as far as we know,” is curious. It implies strongly that the only conceivable explanation of the Committee’s attitude is the action of the Guild in providing lawyers to defend indicted Communists, and that there is no public information which gives plausibility to the Committee’s belief that the Guild is a “front” organization, controlled and run by Communists. On the contrary, however, “as far as we know,” and we know much further than Professor Commager suggests, the Lawyers’ Guild is a Communist creation that, as A. A. Berle stated when he resigned from it in 1940, “is not prepared to take any stand which conflicts with the Communist party line.” Moreover, the House Committee on Un-American Activities has collected and published sufficient evidence to demonstrate this beyond cavil—which leads one to think that if Professor Commager spent nearly as much time reading the records of Congressional hearings as he does denouncing them, we should all be better off.

The entire third sentence is even more curious: “We need not inquire into the accuracy of this charge or into the degree of zeal displayed by the Lawyers’ Guild.” If we take “zeal” to mean pro-Communism (in the context, that is all it can mean), then the degree of this zeal and the accuracy of the charge of pro-Communism are precisely what we do need to inquire into. How can we know whether to sanction or condemn the Committee’s investigation of the Guild as a pro-Communist organization unless we make an effort to find out if the Guild is or is not, in fact, a pro-Communist organization? Even Professor Commager surreptitiously ignores his own disclaimer, as the last two sentences of his paragraph show. Obviously, the two “logical conclusions” flow, not from the Committee’s premise, but his own: namely, that the Lawyers’ Guild is neither pro-Communist nor subversive. From the Committee’s own premise, quite other logical conclusions may be inferred—one of them being that the Committee is engaged in showing up Communist fronts for what they are. Professor Commager’s “logic” is a sleight-of-hand whereby premises that are prejudiced in favor of the Communist interpretation of affairs are made to pass for natural conclusions.

_______________

In the same vein, there is a liberal rhetoric of insinuation that works under cover of a high moral posture. Its net effect is to give a backhanded credence to the Communist assertion that it is impossible to oppose Communism vigorously without walking into the arms of Black Reaction. It is the kind of thing represented in the following observation of Alan Barth’s:

In the New York trial of eleven Communist Party leaders in 1949, a number of FBI undercover operatives who had joined the party appeared as prosecution witnesses. How widely such agents have been dispersed in labor unions, in lawful voluntary associations, and in political groups is a matter of mere conjecture. But it is certainly a matter of legitimate concern to Americans who care about preservation of the traditional rights of privacy.

A noble sentiment, and the unwary reader assents—who is against the right to privacy, and who is not prepared to be concerned with its violation? Only the exceptionally attentive will note that the supposed threat to “the traditional rights of privacy” is “a matter of mere conjecture.” Whose conjecture? We are not told. Is here any ground for such a conjecture? We are not told that either. Is Mr. Barth against the use of undercover agents in principle? He does not say so. Is he against the use of undercover agents in Communist organizations? He does not say this, either. He would seem to be against dispersing FBI agents in bona fide labor unions, lawful voluntary associations, and political groups, and reminds us of the consequences. But who is for it? The answer, which he does not bother to give, is: nobody—and that is why the FBI is doing no such thing and why the whole business is a “matter of mere conjecture.” In the course of Mr. Barth’s innuendoes, however, the onus has been neatly shifted from the Communist conspirators to the FBI agents who identified them.

The same technique of persuasion is at work in such a statement as this one by Professor Commager: “It will be useful to determine, a generation from now, whether those universities that have purged their faculties are actually stronger than they were before the purges occurred—stronger in those essentials that go to make a university.” This has about it so trembling an air of bittersweet wisdom that it seems positively boorish to ask: just which universities would Professor Commager describe as “purged”? Surely Columbia is not one of them, for Professor Commager is not the kind of man who would retain his post on a “purged” faculty. Is it Yale? Princeton? Harvard? University of Chicago? The list could be extended indefinitely, and never provoke an affirmative response, for there is not a single university in the United States that can be said to have been, in any meaningful sense of the word, “purged.” There has been no more than a handful of cases where Communist college teachers have been dismissed, and less than a handful of cases where non-Communists have been unjustly fired as “Reds.” To call this a “purge”—even regardless of whether or not one thinks Communists have a right to teach in colleges—is to echo Communist propaganda.

Perhaps Professor Commager had in mind the University of California, where several dozen (out of a total of more than a thousand) teachers found the idea of a special loyalty oath—the content of which was irrelevant to their action—so offensive and intolerable that they exercised their constitutional right to refuse to swear it, and consequently had to seek other employment. Granting that the notion of a special oath for teachers is obnoxious, and even conceding that this minority was correct and courageous in its particular reaction to it—is it the part of sobriety to insist, as Professor Commager goes on to do, that the philosophy behind the actions of California’s Board of Trustees does not differ “in any essentials” from the philosophy behind the totalitarian control of university teaching? One swallow does not make a spring, or one injustice an apocalypse.

Despite their fondness for clichés of Communist manufacture, all these liberal spokesmen are sincerely anti-Communist—otherwise, what they have to say would be of little interest to anyone. But their rejection of Communism has all the semblance of a preliminary gesture, a repudiation aiming to linger in the memory as a floating credential. It has little relation to all the ensuing scenes of the political drama, where bad conscience and stubborn pride join to guide the liberal through his role.

Did not the major segment of American liberalism, as a result of joining hands with the Communists in a Popular Front, go on record as denying the existence of Soviet concentration camps? Did it not give its blessing to the “liquidation” of millions of Soviet “kulaks”? Did it not apologize for the mass purges of 1936-38, and did it not solemnly approve the grotesque trials of the Old Bolsheviks? Did it not applaud the massacre of the non-Communist left by the GPU during the Spanish Civil War? All this carries no weight with Alan Barth who knows that, though a man repeat the Big Lie, so long as he is of a liberal intention he is saved. On the participation of non-Communists in Communist fronts during the 30’s, he writes: “In the main, their participation, while it lasted, was not only innocent but altogether praiseworthy.” (My italics.)

Even Francis Biddle, who is generally cautious, remarks in his book The Fear of Freedom : “What makes an organization subversive? If a vast majority of its members are Communists but its conduct has always been exemplary, advocating desirable social reforms which Communists usually back, it can hardly fit the description.”

One surmises that Mr. Biddle is not really so politically naive as this statement, on the face of it, would lead one to believe. He must know what it means to be “subversive,” since it was he who, as Attorney General, sent eighteen members of a minuscule Trotskyist sect to jail in 1942 for being just that; he must know how Communists work, how front organizations act as an ancillary to the Communist party apparatus, since this is a matter of common knowledge and Mr. Biddle is uncommonly literate and intelligent. No, it was no elevated unsophistication that urged him on, but rather a sense of shame and a cowardliness to confess that shame. Mr. Biddle, like Mr. Barth, refuses to admit what is now apparent: that a generation of earnest reformers who helped give this country a New Deal should find themselves in retrospect stained with the guilt of having lent aid and comfort to Stalinist tyranny. This is, to be sure, a truth of hindsight, an easy truth. But it is the truth nonetheless, and might as well be owned up to. If American liberalism is not willing to discriminate between its achievements and its sins, it only disarms itself before Senator McCarthy, who is eager to have it appear that its achievements are its sins.

There is a false pride, by which liberals persuade themselves that no matter what association a man has had with a Communist enterprise, he is absolutely guiltless of the crimes that Communism has committed so long as he was moved to this association by a generous idealism. There is a political mythology, by which liberals locate Communism over on the “left,” in a zone exempt from the unsparing verdict directed against the totalitarian “right.” There is also a fear, a fear that the American democracy in an excess of anti-Communism will gather its abundant energy into a wave of “conformism” that will drown all free thought. This pride, this mythology, this fear all unite for a liberal prejudgment of issues (e.g. the cases of Alger Hiss, Owen Lattimore, William Remington, Harry Dexter White) which is not easy to explain on a purely rational view. It is what stimulates a flood of irrelevant and gaudy prose about loyalty in the abstract (“like love it must be given freely,” etc.) while it shuns a careful discussion of Communist disloyalty in the concrete.

Of the three factors, the fear of “conformism” or “orthodoxy” is probably the most influential in its appeal, for it is founded in some degree on objective fact. Alexis de Tocqueville and John Stuart Mill, both friendly critics of the egalitarian trend, pointed out long ago that in every democratic society there is an inherent tendency toward a “despotism of public opinion”; where the majority makes the laws, it may also wish—especially in feverish and unsettled times—to make opinion, lauding the popular and extirpating the unpopular. In America, where the people are more powerful than elsewhere, and where there is, too, a significant tradition of vigilante-ism, the danger of a despotism of public opinion is proportionately greater. When the State Department is forced to suspend an exhibition abroad of modern American art because some Congressmen denounce it as “Communistic,” the danger of such a despotism seems more than academic, and many otherwise sensible people are led to reprehend any attempt to unveil Communist activities or Communist beliefs as a malignant form of “punishment by publicity,” which will soon be extended to all opinions that illiterate and narrow-minded Congressmen detest.

What these people do not see is that Communism, because it is a conspiratorial movement, has not the faintest interest in any genuine resistance to the despotism of public opinion. These martyrs whose testament is—”I refuse to answer on the grounds that it might incriminate me”! These “intellectuals” of Hollywood and radio who are outraged at a Congressman’s insistence that they say what they actually believe, and who wail that they are in danger of—being excluded from well-paying jobs! Is this the vibrant voice of “nonconformity” and “dissent”? Are these the American rebels of today? Oddly enough, the majority of American liberals seem to think so: they have been moved to indignation by the questions, but never moved to disgust by the answers. Presumably, this is what they think a dissenter looks like, and no sadder COMMENTARY is possible on the corruption they have inflicted on themselves. And not only on themselves—for this image of a dissenter happens to coincide with the image held by Joseph McCarthy and Pat McCarran, for whom the dissenter is per se a scheming subversive. No greater spur to the despotism of public opinion can be imagined than this identification of free thought with underground conspiracy.

There is only one way the despotism of public opinion can be resisted. That is for a person with unpopular views to express himself, loudly, brazenly, stubbornly, in disregard of the consequences. Such a person may have to suffer for his convictions, as others have suffered before him, and as others will suffer after. But the responsibility for the mind’s freedom in a democracy lies with the intransigent thinker, with his courage to shout the truth in the face of the mob, with his faith that truth will win out, and with his maddening commitment to the truth, win or lose. Yet, during all the occasions of the past several years, not a single liberal voice was to say to these strange “victims”: “Speak up and damn the consequences! Let them take your job—as they certainly will anyway; tell the truth—you have nothing to lose and honor to gain!” Instead, there were erudite essays on the “right to a job” that would have corroborated William James in his mournful conviction that “the prevalent fear of poverty among our educated classes is the worst moral disease from which our civilization suffers.”

Still, unworthy as these “victims” are, may they not, despite themselves, represent the right of the individual to hold whatever opinions he pleases without having to give a public accounting of them? Even if these Communists and Communist sympathizers are despicable, don’t they have the right to believe privately anything they please? This is the way the question is frequently put, and it reveals a total misapprehension as to what Communism really is.

Communism is an idea, beyond question. Indeed, it is an Idea, and it is of the essence of this Idea that it is also a conspiracy to subvert every social and political order it does not dominate. It is, furthermore, an Idea that has ceased to have any intellectual status but has become incarnate in the Soviet Union and the official Communist parties, to whose infallible directives unflinching devotion is owed. A person who is captive to this Idea can, at any time, in any place, be called upon to do whatever the Idea, i.e., the Party, thinks necessary. Since this is so, it is of considerably more than private interest if a person is held by the Idea—he is, all appearances to the contrary, a person with different loyalties, and with different canons of scrupulousness, from ours. To grant him an “immunity by silence” is to concede the right to conspiracy, a concession no government ever has made or ever will make.

This sounds exaggerated, as it must, being so foreign to the nature of American political experience. Many of us have known Communists, and most of them conveyed no impression of being conspirators. But then, some of us have known Nazis too, and they conveyed no immediate association with gas chambers. It is quite impossible to judge a political movement by the personality of an individual member. Roosevelt certainly didn’t see in Stalin any symptoms of blood lust. Hermann Goering in jail struck one as a clever clown. And there are still plenty of people who can’t believe that Alger Hiss ever did any such thing.

No doubt there are some present members of the Communist party who would, in a showdown, break free of the Idea and rally to the democratic cause. Unfortunately, we have no way of knowing who they are. No doubt there are some present members and fellow-travelers of the Communist party who would sooner or later get disillusioned with Communism if they were permitted to hold down their present jobs as teachers, civil service workers, etc., whereas they are likely to harden in the face of persecution. Unfortunately, it is quite as impossible to tell the citizens of Oshkosh, some of whom have suffered personal loss as a result of the war in Korea, that there is no harm in having their children taught the three R’s by a Communist, as it would have been to persuade the citizens of Flatbush in 1939 that there was no cause for excitement in their children being taught by a Nazi, or to convince a businessman that it is smart practice for him to pay a handsome salary to someone pledged to his “liquidation.” No doubt some of these people became Communists after having suffered during the depression, or during a labor conflict, or as a result of race prejudice, and society must bear its share of the blame. Unfortunately, as Fitzjames Stephens remarked many decades ago: “It does not follow that because society caused a fault it is not to punish it. A man who breaks his arm when he is drunk may have to cut it off when he is sober.”

The problem of fighting Communism while preserving civil liberties is no simple one, and there is no simple solution. A prerequisite for any solution, however, is, firstly, a proper understanding of Communism for what it is, and secondly, a sense of proportion. So long as liberals agree with Senator McCarthy that the fate of Communism involves the fate of liberalism, and that we must choose between complete civil liberties for everyone and a disregard for civil liberties entirely, we shall make no progress except to chaos. So long as one is either for or against “guilt by association,” it is hopeless to try to distinguish between a sober and silly definition of that concept—sober when it is taken to mean, as for instance the Canwell Committee of the State of Washington took it to mean, that anyone who is a member of three or more organizations officially declared subversive is to be considered a Communist; silly when it is taken to mean, as many government loyalty boards take it to mean, that if you have a friend or a relation who is sympathetic to Communism, you are a “bad security risk.” So long as Senator McCarthy and the liberals agree that the right of a Communist to teach or be a government employee is a matter of principle, we shall remain distant from that intelligent discrimination between one case and another, and one situation and another, which alone can give us our true bearings. And so long as Senator McCarthy and the liberals are enmeshed in this confusion, the Senator will grow the stronger, for such confusion is the sap of his political life.

Inevitably, liberals will disagree among themselves about the appropriateness of specific actions with regard to Communism and Communists. Inevitably, too, there will always be a basic division and antagonism between liberalism (which is solicitous of freedom) and McCarthyism (which is not). But if a liberal wishes to defend the civil liberties of Communists or of Communist fellow-travelers, he must enter the court of American opinion with clean hands and a clear mind. He must show that he knows the existence of an organized subversive movement such as Communism is a threat to the consensus on which civil society and its liberties are based. He must bluntly acknowledge Communists and fellow-travelers to be what they are, and then, if he so desires, defend the expediency in particular circumstances of allowing them the right to be what they are. He must speak as one of us , defending their liberties. To the extent he insists that they are on our side, that we can defend our liberties only by uncritically defending theirs, he will be taken as speaking as one of them.

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