Legal System Basis: civil rights and civil liberties

In this part of our Spotlight on Civics discussion, I want to talk about civil rights and civil liberties. These concepts get entangled a lot, but it is important to understand the difference.

The Bill of Rights

Civil liberties come mainly from the Bill of Rights. Civil rights come mainly from the 14th Amendment, statutory law (what the legislature/Congress does), and court cases (aka past precedents).

Remember the Anti-Federalists? These are the guys who were opposed to a strong central government. Their major contribution to Constitutional development was getting a Bill of Rights ratified.

The Bill of Rights is the First Ten Amendments to the US Constitution. Each state also has their own (partly because, until the 14th Amendment, the Bill of Rights only applied to the federal government).

The federal Bill of Rights is in most ways actually a bill of civil liberties. It is a long list of things the government cannot do. Your freedoms from.

A distinction without difference

Some people have said civil liberties versus civil rights is a distinction without a difference, but in that thought lies some of the problems with our current understanding of politics.

A liberty is your freedom from the government; you have liberty because people have to leave you alone. The limited government is limited so it can’t get too much power.

A right is something you’re owed. It puts an affirmative duty on the government to do something. But it gives them money and power to do it (thus un-limiting some of those limited powers).

A prime example of this is the difference between the Third Amendment to the Constitution and your right to an education. The Third Amendment in the Bill of Rights forbids the government from quartering soldiers in private homes. You have a freedom from government action and are protected because the government is limited in this area.

On the other hand, you have a right to an education. This means the government has to do something to make sure you have access to it (e.g., desegregating public schools, providing public funds).

But ensuring this right gives the government power and money (since they have to provide the right, the need money to do it, so they can collect taxes under the “necessary and proper” clause).

Freedom From/Right To

This may seem like semantics, but think about it in terms of the Sixth Amendment’s right to an attorney. For much of US history having an attorney present was a liberty—the government couldn’t stop you—and only a right in certain instances. The landmark case Gideon v Wainwright first articulated the right to a public defender in all cases in 1961. Prior to this, many states only provided counsel for indigent defendants (people who couldn’t afford it) in capital cases (death penalty).

When the Court articulated the right to a lawyer, all of sudden states and the federal government had the power to make it happen and needed to provide the states with money to comply with the mandates. It’s important to note that not all state pushback against Gideon was that they hated the Court or wanted people to stay in jail. It’s more basic politics than that: public defenders cost states a lot of money, and state did not want to or could not pay.

You can see here that a liberty became a right (at the moment I can’t think of times it went the other way), but what about a liberty that we think is a right but (maybe) isn’t.

You don’t have a right to vote

Voting is a hot button topic right now.  Notice I didn’t say “right” to vote. It is unclear that we have a right to vote. Voting as a liberty would explain why the government can take the ability to vote away from felons, or why the government isn’t required to make sure people have access to voting (though mail in voting, making election day a holiday, early voting programs, etc).

Think of how differently our system might look (not necessarily the electoral outcomes, just the architecture) if the government had to guarantee that each American had access to the right to vote.

Some democracy scholars suggest that is what America needs most right now.

Why focus on civil liberties?

Often our preference for rights/liberties discourse is shaped not by our understanding of the implications of the issues but by our society and cultural values. I was born in Massachusetts, but I spent my formative years in Texas. Having lived in two different worlds, it is easy for me to see the strengths and limitations of both ideologies. Or, better put, why there shouldn’t really be an ideology.

For example, in my current town, I need a permit to build a bike shed. This is wild to me. I don’t have public water or sewer, so there’s not a chance of me infecting someone’s water supply; there are going to be bikes in the shed, not livestock (nothing’s going to die if I mess it up). So, to the Texas part of my mind, this is wild government overreach and a money grab. To my neighbors, it’s just what you do.

There are things that we want the government to interfere in (for instance, I enjoy having a fire department). But if we are too quick to make our liberties into rights just so that the government has the power to fix things, then we risk giving up too much power for the government to break those very things.

At the end of the day, when you hear people talking about rights or liberties or government power, I would recommend engaging in the conversation through the lens of freedom to/from rather than just jumping into one camp. It’ll make for a more interesting conversation and help you think through the issue in a pragmatic way.