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Bill of Rights

      While civil liberties refer to restrictions on government action, civil rights refer to the extension of government action to secure citizenship rights for all members of society. When we speak of civil rights, we most often mean that the government must treat all citizens equally, apply laws fairly, and not discriminate unjustly against certain groups of people. Most of the rights we consider civil rights are guaranteed by the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments. These amendments lay out fundamental rights of citizenship, most notably the right to vote, but also the right to equal treatment before the law and the right to due process of the law. They forbid government from making laws that treat people differently on the basis of race, and they ensure that the right to vote cannot be denied on the basis of race or gender.

      civil rights citizenship rights guaranteed to the people (primarily in the Thirteenth, Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments) and protected by the government

      Not all people live under governments whose rules guarantee them fundamental liberties. In fact, we argued earlier that one way of distinguishing between authoritarian and nonauthoritarian governments is that nonauthoritarian governments, including democracies, give citizens the power to challenge government if they believe it has denied them their basic rights. In fact, democracies depend on the existence of rights in at least two ways. First, civil liberties provide rules that keep government limited, so that it cannot become too powerful. Second, civil rights help define who “we, the people” are in a democracy, and they give those people the power necessary to put some controls on their governments.

      We will take two chapters to explore in depth the issues of civil liberties and civil rights. In this chapter we begin with a general discussion of the meaning of rights or liberties in a democracy and then focus on the traditional civil liberties that provide a check on the power of government. In Chapter 5 we focus on civil rights and the continuing struggle of some groups of Americans—like women, African Americans, and other minorities—to be fully counted and empowered in American politics.

      As an introduction to the basic civil liberties guaranteed to Americans, in this chapter you will learn about the meaning of rights in a democratic society, the Bill of Rights as part of the federal Constitution and its relationship to the states, and several specific rights that it details—freedom of religion, speech, and the press; the right to bear arms; the rights of people accused of crimes; and the right to privacy.

      Rights in a Democracy: Limiting government to empower people

      The freedoms we consider indispensable to the working of a democracy are part of the everyday language of politics in America. We take many of them for granted: we speak confidently of our freedoms of speech, of the press, and of religion, and of our rights to bear arms, to a fair trial, and to privacy. There is nothing inevitable about these freedoms, however.

      In fact, there is nothing inevitable about the idea of rights at all. Until the writing of such Enlightenment figures as John Locke, it was rare for individuals to talk about claiming rights against government. The prevailing narrative was that governments had all the power, their given subjects only such privileges as government was willing to bestow. Locke argued that the rights to life, liberty, and the pursuit of property were conferred on individuals by nature, and that one of the primary purposes of government was to preserve the natural rights of its citizens.

      This notion of natural rights and limited government was central to the founders of the American system. Practically speaking, of course, any government can make its citizens do anything it wishes, regardless of their rights, as long as it is in charge of the military and the police. But in nonauthoritarian governments, the public is usually outraged at the invasion of individual rights. Unless the government is willing to dispense with its reputation as a democracy, it must respond in some way to pacify public opinion. Public opinion and the narrative of natural rights can be a powerful guardian of citizens’ liberties in a democracy.

      Just as rights limit government, they also empower its citizens. A person who can successfully claim that he or she has rights that government must respect is a citizen of that government. A person who is under the authority of a government but cannot claim rights is merely a subject, bound by the laws but without any power to challenge or change them. This does not mean, as we will see, that a citizen can always have things his or her own way. Nor does it mean that noncitizens have no rights in a democracy. It does mean, however, that citizens have special protections and powers that allow them to stand up to government and plead their cases when they believe an injustice is being done.

      However, because rights represent power, they are, like all other forms of power, subject to conflict and controversy. Often for one person to get his or her own way, someone else must lose out. People clash over rights in two ways. First, individuals’ rights conflict with each other; for instance, one person’s right to share a prayer with classmates at the start of the school day conflicts with another student’s right not to be subjected to a religious practice against his or her will. Second, individuals’ rights can conflict with society’s needs and the demands of collective living; for instance, an individual’s right to decide whether or not to wear a motorcycle helmet conflicts with society’s need to protect its citizens. Since the terror attacks of September 11, 2001, this latter conflict between individual rights and social needs has been thrown into sharp relief, as measures to protect the population have increased the government’s ability to do such things as screen airline passengers, intercept email and conduct roving wiretaps, and gain access to library records and bookstore purchases—all at the expense of individual freedom. The balancing of public safety with individuals’ rights is complex. We could ensure our safety from most threats, perhaps, if we were willing to give up all of our freedom, but the ultimate problem, of course, is that without our civil liberties, we have no protection from government itself.

      Although conflicts over rights sometimes lead to violence, usually they are resolved in the United States through politics—through the process of arguing, bargaining, and compromising over who gets what, and how. All this wrangling takes place within the institutions of American politics, primarily in Congress and the courts, but also in the White House, at the state and local levels, and throughout our daily lives.

      In Your Own Words

      Define rights and liberties and their role in a democratic society.

      The Bill of Rights and the States: Keeping Congress and the states in check

      The Bill of Rights looms large in any discussion of American civil liberties, but the document that today seems so inseparable from American citizenship had a stormy birth. Controversy raged over whether a bill of rights was necessary in the first place, deepening the split between Federalists and Anti-Federalists during the founding. And the controversy did not end once it was firmly established as the first ten amendments to the Constitution. Over a century passed before the Supreme Court agreed that at least some of the restrictions imposed on the national government by the Bill of Rights should be applied to the states as well.

      Why Is a Bill of Rights Valuable?

      Recall from Chapter 2 that we came very close to not having any Bill of Rights in the Constitution at all. The Federalists had argued that the Constitution itself was a bill of rights, that individual rights were already protected by many of the state constitutions, and that to list the powers that the national government did not have was dangerous, as it implied that it did have every other power (see The Big Picture: What the Bill of Rights Means to You).

      To some extent they were correct in calling the Constitution a bill of rights in itself. Protection of some very specific rights is contained in the text of the document. The national government may not suspend writs of habeas corpus, which means that it cannot fail to bring prisoners, at their request, before a judge and inform the court why they are being held and what evidence exists against them. This provision

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