Tuesday, 4 February 2014

Civil Rights and Civil Liberties


I INTRODUCTION
Civil Rights and Civil Liberties, political and social concepts referring to guarantees of freedom, justice, and equality that a state may make to its citizens. Although the terms have no precise meaning in law and are sometimes used interchangeably, distinctions may be made. Civil rights is used to imply that the state has a positive role in ensuring all citizens equal protection under law and equal opportunity to exercise the privileges of citizenship and otherwise to participate fully in national life, regardless of race, religion, sex, or other characteristics unrelated to the worth of the individual. Civil liberties is used to refer to guarantees of freedom of speech, press, or religion; to due process of law; and to other limitations on the power of the state to restrain or dictate the actions of individuals. The two concepts of equality and liberty are overlapping and interacting; equality implies the ordering of liberty within society so that the freedom of one person does not infringe on the rights of others, just as liberty implies the right to act in ways permitted to others.
II HISTORY
The concept that human beings have inalienable rights and liberties that cannot justly be violated by others or by the state is linked to the history of democracy. It was first expressed by the philosophers of ancient Greece. Socrates, for example, chose to die rather than renounce the right to speak his mind in the search for wisdom. Somewhat later the Stoic philosophers formulated explicitly the doctrine of the rights of the individual (see Stoicism). Traces of libertarian doctrine appear in the Bible and in the writings of the Roman statesman Marcus Cicero and the Greek essayist Plutarch. Such ideas, however, did not gain a permanent place in the political structure of the Roman Empire and all but disappeared during medieval times.
A Early Development
Individual freedom can survive only under a system of law by which both the sovereign and the governed are bound. Such a system of fundamental laws, whether written or embodied in tradition, is known as a constitution. The idea of government limited by law received effective expression for the first time in the Magna Carta (1215), which checked the power of the English king. The Magna Carta did not stem from democratic or egalitarian beliefs; rather, it was a treaty between king and nobility that defined their relationship and laid the basis for the concept that the ruler was subject to the law rather than above it. The development of constitutional government was slowed by the persistence of the ideas of absolutism, the belief that all political power should be in the hands of one individual, and divine right, which held that kings derived their power from—and were accountable only to—God. These beliefs were widely held throughout Europe until the 18th century. The notion that the people have the right to be asked to consent to acts of government did not arrive without a protracted struggle. The reigns of the Tudor and Stuart monarchs in England were marked by fierce conflicts between the Crown and Parliament.
On the European continent the struggle between authoritarian and libertarian principles developed around religious rather than secular issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare; as late as 1612, for instance, members of the Unitarian sect were burned as heretics in England (see Unitarianism). Not until the end of the 18th century did the ideals of religious toleration become firmly established in Western civilization.
As a result of the English, American, and French revolutions, libertarian ideals were embodied in the structure of national governments. In England, the struggle between Parliament and the absolutist Stuart monarchs culminated in the so-called Glorious Revolution of 1688. King James II was expelled, and the new king, William III, gave royal assent (1689) to the Declaration of Rights (English Bill of Rights), which guaranteed constitutional government. Subsequently, the monarch’s prerogatives were limited by statute and custom. The idea of a constitutional system is described in the writings of the English philosopher John Locke, which profoundly influenced the leaders of the American colonies.
The 17th century was marked also by the growth of individual freedom in Great Britain. In the common law courts, for example, the judges became more concerned for the rights of those accused of crime, and procedural safeguards were established.
B Spread of Civil Liberties
British colonists brought the concepts of limited government and individual freedom to the New World. The early laws of Virginia, Massachusetts, and other colonies reflected interest in the reform of criminal procedure that was emerging in Great Britain. A notable event in the history of civil liberties was the successful defense (1735) in New York by the Philadelphia lawyer Andrew Hamilton of the printer John Peter Zenger, who had been charged with seditious libel for criticisms of the colonial government in his publication the New York Weekly Journal. Hamilton established the principle that the government may not punish truthful publications of matters of public concern. See The Trial of John Peter Zenger.
The events leading to the American and French revolutions inspired writings that laid the foundations for modern ideas of civil liberties by such authors as the French philosophers Voltaire and Jean Jacques Rousseau, the British reformer John Wilkes and the philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesmen Thomas Jefferson and James Madison. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights of the Constitution of the United States formally established libertarian principles as a foundation of modern democracy.
Although civil liberties are often considered an integral part of democratic government, the principles of limited government and personal freedom were developed in England at a time when political power was held by an aristocratic upper class. Similarly, in the American colonies, many founding fathers did not favor democracy in the modern sense. Indeed, the framers of the U.S. Constitution provided a method of electing the nation’s president that avoids a direct popular vote. Conversely, history offers numerous examples of countries in which political power is formally vested in representative assemblies, but enforcement of law is arbitrary or despotic, and minorities have few safeguards against the tyranny of majorities.
III CIVIL RIGHTS AND CIVIL LIBERTIES IN THE UNITED STATES
The civil rights and liberties of U.S. citizens are largely embodied in the Bill of Rights (the first ten amendments to the Constitution) and in similar provisions in state constitutions. The First Amendment guarantees freedom of speech, press, assembly, and religious exercise as well as separation of church and state (see Speech, Freedom of; Press, Freedom of the; Religious Liberty). The Fourth Amendment protects the privacy and security of the home and personal effects and prohibits unreasonable searches and seizures. The Fifth through Eighth amendments protect persons accused of crime; they guarantee, for example, the right to trial by jury, the right to confront hostile witnesses and to have legal counsel, and the privilege of not testifying against oneself. The Fifth Amendment also contains the general guarantee that no one shall be deprived of life, liberty, or property without due process of law (see Due Process of Law). Originally these amendments were binding only on the federal government. However, decisions by the Supreme Court of the United States have established that the Due Process Clause of the 14th Amendment (ratified in 1868) applies many of the guarantees in the Bill of Rights to actions by state and local governments.
A Religious Freedom
Although religious freedom has not generally been curtailed in the United States, Roman Catholics, Jews, and members of such unconventional Protestant groups as the Oneida Community and the Church of Jesus Christ of Latter-day Saints have historically been discriminated against and sometimes have even been persecuted, although today overt discrimination has almost vanished.
The federal Civil Rights Act of 1964, as well as many state and local laws, prohibits religious discrimination. The government recognizes the right of religious pacifists to refuse to bear arms, even in time of war. The Supreme Court has ruled that this right, known as conscientious objection, need not be based only on religious training or belief in a supreme being. The Court has also upheld the right of Jehovah’s Witnesses to refuse to salute the flag because of religious objections.
Applying the principle of separation of church and state (see Church and State), the Court has struck down many attempts to use public funds to finance religious schools; at times, however, the Court has permitted the use of public funds for buildings and other nonsectarian programs of religious schools. In the 1960s the Court ruled that state-composed prayers and Bible reading in public schools violated the Constitution, a policy to which the Court has adhered. In 2000, for example, it struck down school-sponsored prayers at public high school football games. Efforts to reverse these rulings were unsuccessful, but in recent years the Court has been more permissive in allowing government aid to religion. For example, in certain cases it has upheld a community’s right to place religious displays on public property, and in 2002 it upheld a school voucher program in which public funds were largely to pay for education at religious private schools. At the same time, however, the Court has refused to require the government to carve out religious exemptions from generally applicable laws.
B Freedom of Speech, Press, and Assembly
Civil liberties have been most endangered during periods of national emergency. In 1798 hostility toward revolutionary France led Congress to enact the Alien and Sedition Acts, which stripped aliens of nearly all civil rights and threatened freedom of speech and the press by prohibiting “false, scandalous and malicious writing” against the government, Congress, or the president. The constitutionality of these acts was never tested, but they soon expired, were not reenacted, and are now generally agreed to have been unconstitutional.
During the American Civil War (1861-1865), President Abraham Lincoln gave his principal military officers wide and unreviewed authority to arrest civilians for disloyal speech or acts. After World War I (1914-1918), fear of the newly established Communist government in the Soviet Union led to the harassment of suspected subversives by the U.S. Department of Justice.
The rise of National Socialism in Germany, the spread of communism, and the Great Depression of the 1930s all combined to arouse concern for the internal security of the United States. The federal legislative and executive power to deal with disloyal acts was enlarged. In 1940 Congress passed the Smith Act, which outlawed the advocacy of force and violence as a means of bringing about changes in government. In 1950 Congress adopted the Internal Security Act, which established a new federal agency for identifying and suppressing so-called subversive persons and organizations. Congress virtually outlawed the Communist Party in 1954, although membership in the party was not expressly made criminal. These statutes were upheld by the Supreme Court, but eventually were limited in scope and fell into disuse during the 1960s. In 1969 the Court adopted a constitutional standard that protects political speech unless “directed to inciting … imminent lawless action” and was likely to produce such action.
In the 1950s congressional and state investigating committees conducted widely publicized hearings at which thousands of individuals were questioned concerning their political activities and associations, if any, with the Communist Party. Among the legislators prominently identified with these investigations were Senators Patrick McCarran of Nevada and Joseph McCarthy of Wisconsin. The Supreme Court subsequently limited such proceedings.
New problems emerged during the 1960s and 1970s. Demonstrations by opponents of racial discrimination and the Vietnam War (1959-1975), and government attempts to restrict these demonstrations, led the Supreme Court to specify where, when, and how cities and states may limit the use of streets, parks, and other public places for purposes of protest. At the same time, certain symbolic forms of expression were employed by the protesters, leading to court rulings upholding criminal punishment for the burning of draft cards but reversing convictions for the mutilation of the American flag as a form of expression. The Court held in 1989 and 1990 that neither the federal government nor the states could single out the burning of the American flag for criminal penalties.
The attempted publication in 1971 by the New York Times and the Washington Post of the so-called Pentagon Papers led to a major Supreme Court decision that prior restraints on publication of national security material could not be enjoined unless such material “will surely result in direct, immediate and irreparable damage to our nation or its people.” See Censorship.
In 1964 the Supreme Court ruled for the first time that, to give the press breathing room, even false statements about public officials are protected by the First Amendment unless uttered with “actual malice”; that is, with knowledge of their falsehood or with reckless disregard of the facts. Later cases refined this decision but left to the discretion of the states whether to allow defamation actions brought by persons who are neither public officials nor public figures.
The Supreme Court also elaborated its 1957 ruling that obscenity is not constitutionally protected speech. Determining the content of obscenity has been difficult; in 1973 it was defined as speech that, taken as a whole, appeals to the prurient interest, is patently offensive in depicting sexual conduct, and lacks serious literary, political, or scientific value. This vague definition has led to numerous lawsuits involving explicit sexual material. Conservative religious groups and some feminists have attempted to restrict the distribution of sexually explicit material that is not obscene. The movement achieved limited success, but civil libertarians have led efforts to combat this form of censorship. In 1997 the Court struck down a federal law that banned nonobscene but sexually explicit material on the Internet. The Court reasoned that Congress may not prohibit circulation to adults of constitutionally protected speech simply because children might see it.
One of the most controversial First Amendment cases of the late 1970s did not reach the Supreme Court. When a U.S. Nazi group sought to march in Skokie, Illinois, the home of many Jewish survivors of German concentration camps, emotions were aroused, and the city enacted laws designed to prevent the march. Both federal and state courts upheld the right of this Nazi group, which was represented by the American Civil Liberties Union, to express itself peaceably.
The Court has broadened constitutional protection for many other forms of speech, including commercial speech. In the 1990s, it struck down several attempts to ban advertising, including liquor advertising, said to be harmful.
C Criminal Trials and Due Process of Law
Thousands of Supreme Court rulings have been concerned with the rights of persons accused of crimes. Defendants in state as well as federal criminal cases are assured that they cannot be imprisoned for an offense unless represented by a lawyer, or counsel; if a defendant is impoverished, such counsel must be supplied by the government. Defendants must be warned that they may not be questioned until counsel is provided, and defendants may not be convicted on the basis of confessions obtained by coercion. The Court also ruled that prosecutors may not exclude people from juries on grounds of race or sex.
The Fifth Amendment privilege against self-incrimination was the most controversial constitutional protection during the 1950s and 1960s, when it was invoked by, among others, individuals accused of subversive activities and participation in organized crime. The Court’s interpretation of the Fourth Amendment has also generated controversy; its provisions protecting the security of the person and of dwellings have been cited in disallowing convictions based on evidence obtained by the police illegally. The Court in the 1970s began to narrow its interpretation, a process that has continued into the 21st century as the public has come to favor crime-control measures over the rights of defendants. This climate of opinion has also led to more frequent use of capital punishment, although the Court has limited the crimes for which death may be the punishment. The Court has also prescribed procedures that must be followed before the death penalty may be given. At the same time, it has limited the right of prisoners to appeal their convictions on constitutional grounds.
C1 Criminal Trials and Due Process during the ‘War on Terror’
Following the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon by international terrorists, President George W. Bush invoked his constitutional authority as commander-in-chief and signed a military order allowing the government to detain and conduct military trials of noncitizens suspected of terrorism. The U.S. military proceeded to detain as “unlawful enemy combatants” hundreds of foreign nationals who were captured during hostilities in Afghanistan and elsewhere. The government held them indefinitely at the U.S. naval base at Guantánamo Bay, Cuba, without bringing criminal charges or allowing them legal counsel. The military also detained two American citizens as unlawful enemy combatants.
In 2004 the Supreme Court considered the constitutionality of indefinite detentions of enemy combatants. In the case Hamdi v. Rumsfeld, the Court upheld the authority of the president of the United States to classify U.S. citizens as unlawful enemy combatants and to detain them without charges. However, the Court ruled that such detainees are entitled to challenge the government’s case against them before an impartial judge. In addition, detainees have the right to an attorney. In Rasul v. Bush, the Court ruled that foreign detainees held at Guantánamo Bay have the right to challenge their detention in U.S. courts.
In June 2006 the Supreme Court addressed the issue of military trials for accused enemy combatants. In Hamdan v. Rumsfeld the Court ruled that proposed military tribunals for alleged unlawful combatants violated federal statute and the Uniform Code of Military Justice (UCMJ), in part because the UCMJ incorporates Common Article 3 of the Geneva Conventions—most importantly its requirement of trials before “regularly constituted courts.” The Court found that the Bush administration’s proposed military tribunals were illegal because, unlike normal court-martial proceedings, trials in these commissions allowed for evidence obtained by coercion and hearsay, and because the accused were not allowed to be present at all times during the trial or to see all the evidence against them.
In September 2006 the U.S. Congress responded to the Supreme Court’s ruling by passing the Military Commissions Act of 2006. The new law reflected Congress’s insistence that torture be prohibited but also permitted under certain conditions the admission of evidence obtained by coercion. The new law also denied the right of habeas corpus to noncitizens designated as unlawful enemy combatants by the president or secretary of defense. The law affirmed the president's power to hold people as enemy combatants based on a wide range of conduct, some of it falling well short of actual military hostilities.
D Privacy
A constitutional right of privacy, drawn from the Bill of Rights provisions protecting the security of home and person, as well as freedom of association, was first recognized by the Supreme Court in 1965. In Griswold v. Connecticut the Court struck down a state law that prohibited the use of contraceptives by a married couple. The decision was later extended to protect the rights of single persons and, in the Roe v. Wade decision of 1973, the right of women to abort an unwanted pregnancy. In 1980, however, the Court refused to apply this ruling to require the federal government to bear the cost of abortions for women who could not afford them. Efforts to reverse Roe v. Wade judicially or by constitutional amendment were unsuccessful. A divided Supreme Court in 1992 reaffirmed the core holding of Roe while further limiting its scope.
Other test cases of rights of privacy during this period concerned wiretapping and eavesdropping on private conversations, widespread dissemination of personal information through computers, access to information in government files, and the use without consent of pictures and names of celebrities. Although the courts have given some protection to privacy, the limitations have been relatively minor. For example, the Supreme Court ruled in 2000 that Congress could prohibit states from selling personal information on state drivers’ licenses and motor-vehicle registration records. Additional protection has resulted from legislative enactments such as the federal Privacy Act of 1974 and various state statutes.
The Patriot Act, antiterrorism legislation passed in the aftermath of the September 11 attacks, significantly expanded the federal government’s surveillance powers. Federal agents were given greater authority to wiretap telephones, to monitor e-mail and Internet use, and to secretly search a suspect’s home or office. These powers were further widened by the Intelligence Reform and Terrorism Prevention Act of 2004, which authorized the sharing of personal information from public and private databases. Civil liberties advocates warned that this provision had the potential to lead to unchecked data surveillance, but supporters of the law said adequate safeguards were in place to protect privacy. See also Surveillance, Electronic.
Civil liberties advocates were again concerned when it was revealed in December 2005 that President George W. Bush had signed a presidential order in 2002 authorizing the National Security Agency to eavesdrop without judicial warrants on the overseas electronic communications of U.S. citizens and foreign nationals in the United States. Many legal experts believed the order violated the 1978 Foreign Intelligence Surveillance Act (FISA), which set up a special court to hear government requests for domestic wiretaps of U.S. citizens or foreign nationals in investigations involving espionage. Although the Patriot Act further amended FISA by lowering the standard for court-approved eavesdropping to include possible terrorists linked to foreign intelligence services, it still required approval by the FISA special court for wiretapping. FISA was enacted in response to abuses by the Federal Bureau of Investigation and the Central Intelligence Agency, which were found to have wiretapped individuals and organizations engaged in civil rights and anti-Vietnam War protests and other First Amendment-protected activities during the 1960s and 1970s. To prevent abuses, FISA prohibited any electronic surveillance not authorized by the special court.
In hearings before the U.S. Congress, Attorney General Alberto Gonzales aggressively countered the claim that the NSA wiretapping was illegal, citing Bush’s authority as commander in chief. Gonzales said the program’s legality was also established by a congressional resolution, the 2001 Authorization for Use of Military Force, which authorized the president to use “all necessary and appropriate force” to prevent future acts of terrorism. Many members of Congress, however, said the resolution had nothing to do with warrantless electronic surveillance. The conflict raised serious questions not only about privacy but also about the limits of presidential power and the system of checks and balances during wartime. See also Signing Statement.
E Minority Rights
E1 Civil Rights for Blacks
The most critical civil rights issue in the United States has concerned the status of its black minority. After the Civil War the former slaves’ status as free people entitled to the rights of citizenship was established by the 13th and 14th Amendments, ratified in 1865 and 1868, respectively. The 15th Amendment, ratified in 1870, prohibited race, color, or previous condition of servitude as grounds for denying or abridging the rights of citizens to vote. In addition to these constitutional provisions, Congress enacted several statutes defining civil rights more particularly. The Supreme Court, however, held several of these unconstitutional, including an 1875 act prohibiting racial discrimination by innkeepers, public transportation providers, and places of amusement.
During the period of Reconstruction the Republican-dominated federal government maintained troops in the southern states. Blacks voted and held political offices, including seats in Congress. Two blacks became senators, and 20 were elected to the House of Representatives during this era. The Reconstruction era aroused the bitter opposition of most southern whites. The period came to an end in 1877, when a political compromise between the Republican Party and southern leaders of the Democratic Party led to the withdrawal of federal troops from the South.
In the last two decades of the 19th century, blacks in the South were disfranchised and stripped of other rights through discriminatory legislation and unlawful violence. Separate facilities for whites and blacks became a basic rule in southern society. In Plessy v. Ferguson, an 1896 case involving the segregation of railroad passengers, the Supreme Court held that “separate but equal” public facilities did not violate the Constitution and refused to acknowledge that the separate facilities in use were not in fact equal.
During the first half of the 20th century, racial exclusion, either overt or covert, was practiced in most areas of American life. During World War II (1939-1945) black leaders such as A. Philip Randolph protested segregation in military service, and some reforms were introduced. In 1948 President Harry S. Truman signed an executive order integrating the armed forces. The 1954 Supreme Court decision in Brown v. Board of Education represented a turning point; reversing the 1896 “separate but equal” ruling, the Court held that compulsory segregation in public schools denied black children equal protection under the law. It later directed, ineffectually, that desegregated educational facilities be furnished “with all deliberate speed.” Subsequent decisions outlawed racial exclusion or discrimination in all government facilities. The Court also upheld federal laws barring discrimination in interstate commerce, such as public transportation. A state law against racial intermarriage was also ruled invalid (see Miscegenation).
School desegregation was resisted in the South. Federal determination to enforce the court decision was demonstrated in Little Rock, Arkansas, in 1957, when President Dwight Eisenhower dispatched troops to secure admission of black students into a “white” high school. Nevertheless, in the Deep South progress toward integration was negligible in the years following the Supreme Court decision. In 1966, for example, the overwhelming majority of southern schools remained segregated. By 1974, however, some 44 percent of black students in the South attended integrated schools, and by the early 1980s the number was approximately 80 percent.
In the North and West many black students also attended segregated schools. Such segregation was considered unconstitutional only where it could be proven to have originated in unlawful state action. Public controversy, sometimes violent, continued over the issue of transporting children in school buses long distances from their homes in order to achieve integration. Busing had become necessary because of the concentration of minority populations in the central areas of many cities. The Supreme Court dealt a blow to such busing in July 1974 by, in effect, barring it across school-district lines except on a voluntary basis.
Civil rights for blacks became a major national political issue in the 1950s. The first federal civil rights law since the Reconstruction period was enacted in 1957. It called for the establishment of a U.S. Commission on Civil Rights and authorized the U.S. attorney general to enforce voting rights. In 1960 this legislation was strengthened, and in 1964 a more sweeping civil rights bill outlawed racial discrimination in public accommodations and by employers, unions, and voting registrars. Deciding that normal judicial procedures were too slow in assuring minority registration and voting, Congress passed a voting rights bill in 1965. The law suspended (and amendments later banned) use of literacy or other voter-qualification tests that had sometimes served to keep blacks off voting lists, authorized appointment of federal voting examiners in areas not meeting certain voter-participation requirements, and provided for federal court suits to bar discriminatory poll taxes, which were ended by a Supreme Court decision and the 24th Amendment (ratified in 1964). In the aftermath of the assassination of the civil rights leader Martin Luther King, Jr., Congress in 1968 prohibited racial discrimination in federally financed housing, but later efforts to strengthen the law failed. See also Segregation in the United States.
E2 Affirmative Action
An important constitutional issue that has caused public controversy is whether, and to what degree, public and private institutions may use affirmative action to help members of minority groups obtain better employment or schooling. In the Regents of the University of California v. Bakke case in 1978, the Supreme Court held that it was unconstitutional for the University of California Medical School at Davis to set an absolute quota for the admission of minority candidates, but said that race can be taken into account for the setting of numerical goals that were not disguised quotas. The Court later ruled that racial preferences by a private corporation designed to remedy prior discrimination did not violate the Civil Rights Act.
A changing political climate in the 1980s and 1990s, however, led to the repeal of many affirmative action programs. In 1995 the Court said that all public affirmative action plans must be strictly scrutinized. The Court hinted strongly that only those plans designed to remedy past acts of discrimination would survive. Furthermore, many lower courts began to openly reject the finding in the Bakke case that colleges and universities were permitted to seek racial diversity among their student bodies by giving special consideration to minority applicants.
Nevertheless, in the first major decision on affirmative action since the Bakke case in 1978, the Supreme Court in 2003 reaffirmed racial diversity as a goal of college and university admissions programs. The case involved the University of Michigan Law School’s admission program, which considered race, among other qualities, in evaluating each applicant. In a 5 to 4 decision the Supreme Court upheld the law school’s affirmative action program, finding that there was a “compelling public interest” in achieving diversity as long as quotas were not used. The decision in Grutter v. Bollinger came despite briefs filed against affirmative action by the administration of President George W. Bush. The decision did not rescind state laws that forbid affirmative action programs, such as those passed by popular initiative in California and Washington. Civil rights organizations hailed the ruling as a historic victory. Opponents of the decision took note of the Court’s opinion that affirmative action should only be necessary for another 25 years.
E3 Civil Rights for Hispanics and Asian Americans
Civil rights have also been denied to Hispanic Americans, particularly Puerto Ricans in the East and Mexican Americans in the Southwest. The problem has followed traditional paths, as rights have been denied in employment, housing, and access to the judicial system.
Asian Americans also have suffered deprivations of civil rights since at least the late 19th century. The forced removal and incarceration of persons of Japanese descent from the West Coast during World War II, which was upheld by the Supreme Court, was a major violation of civil liberties for which Congress apologized and provided reparations in 1990 (see Japanese American Internment). Asians faced low immigration quotas before the laws were amended in 1965, 1968, and 1977, and in parts of the United States, Asian Americans have been denied equal rights in housing and employment.
F Rights of Women
Historically, American women have been denied their civil rights in suffrage (they were unable to vote until a 1920 constitutional amendment), employment, and other areas. In the 1960s women organized to demand legal equality with men and, after passage of the Civil Rights Act of 1964, made many gains, especially in employment. During the 1970s efforts continued to change not only unfair practices but also outmoded attitudes toward the role of women in society. In 1972 Congress passed the Equal Rights Amendment (ERA) to the Constitution and submitted it to the states for ratification. The ERA, however, which was designed to eliminate legal discrimination against women, failed to win the approval of a sufficient number of states; by the June 1982 deadline only 35 of the required 38 states had ratified the amendment. Although the ERA failed, beginning in the 1970s the Supreme Court ruled that laws treating men and women differently were constitutionally suspect. In the landmark case United States v. Virginia in 1996, the Court said that sex discrimination is unconstitutional unless the state can advance an “exceedingly persuasive justification.”
Women have continued to make gains in certain trades and professions, including financial services, medicine, and law, but problems remain in many areas. The Civil Rights Act of 1991 extended to women victims of job bias the right to sue their employers for monetary damages. The act also established a commission to probe the “glass ceiling” that has prevented women and other minorities from advancing to top management. See Women’s Rights.
G Rights of Other Minorities
The struggle for civil rights has not been confined to blacks, Hispanic Americans, Asian Americans, and women. Native Americans for decades were forcibly deprived of their lands and denied civil rights. In 1968 Congress enacted the Indian Civil Rights Act, and the federal courts have heard a number of suits designed to restore to Native American tribes rights to their ancestral lands.
The elderly have also been deprived of their civil rights, especially in employment and to some degree in housing. Federal and state laws have been only partially successful in solving this problem. Former prisoners and mental patients have suffered legal disabilities after their confinement ended, and resident aliens are sometimes denied equal employment opportunities.
Homosexuals, historically, have not had full civil rights because of social and sexual taboos. The number of judicial decisions and laws enacted at the local level to protect gay men and women from discrimination has increased, but the degree of prejudice was heightened in the 1980s by the concern about Acquired Immune Deficiency Syndrome (AIDS). In 1986 the Supreme Court ruled that the Constitution does not bar criminal prosecution for private homosexual relations between consenting adults. Several local governments acted to curtail the rights of lesbians and gay men. By the early 1990s the gay community had organized more effectively than ever before in the effort to assert their rights. In 1996 the Supreme Court ruled that state and local governments cannot make it more difficult for homosexuals than other groups to seek protection through antidiscrimination legislation. And in 2003, in a landmark decision, the Supreme Court overturned its 1986 ruling and nullified laws in 13 states that criminalized gay sexual practices. The Court asserted that gays are “entitled to respect for their private lives” and that “the state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” See also Gay Rights Movement.
IV CIVIL RIGHTS AND CIVIL LIBERTIES IN CANADA
Although bordering the United States and sharing a similar legal system, the development of civil rights and civil liberties in Canada has followed a different path, in large part because Canada had no equivalent to the U.S. Bill of Rights until very recently. Provincial codes provided for several rights of the kind protected by the U.S. Bill of Rights, but they did not apply throughout Canada and were far from complete. After World War II, a political movement in Canada championed a Canadian Bill of Rights, and in the 1950s the Supreme Court of Canada issued some rulings that suggested it might develop civil rights concepts on its own. In 1960 the Canadian Parliament enacted a Bill of Rights, but it applied only to the federal government, not to the provinces. Moreover, the Bill of Rights was an ordinary statute that lacked the force of an amendment to the Constitution of Canada.
Beginning in the late 1960s, Prime Minister Pierre Trudeau initiated a complex political and legal battle that ultimately led, in 1982, to the adoption of the Canadian Charter of Rights and Freedoms as part of the Canadian constitution. The charter established a menu of civil rights and liberties similar to those set out in the U.S. Constitution. Additionally, the charter expressly provides for the right of judicial review, permitting those who claim that their rights under the charter have been infringed or denied to seek remedies in court. One major difference between the charter and the U.S. Constitution is that some of the charter’s provisions may be overridden in certain circumstances by both the Canadian federal government and provincial legislatures. In the United States, neither Congress nor the state legislatures may pass a law that conflicts with rights protected by the Constitution.
The charter spells out a host of “fundamental freedoms,” including freedom of conscience and religion; freedom of thought, belief, opinion, and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association. It provides “mobility rights” that give Canadians the right to enter and leave Canada and to settle and live in any province. The charter also spells out a host of procedural rights in criminal prosecutions, including the rights of the accused against self-incrimination, double jeopardy, cruel and unusual punishments, and unreasonable search and seizure, and the rights to be presumed innocent, to speedy trial, to representation by counsel, and to habeas corpus. The charter’s version of the due process clauses in the U.S. Constitution declares that “everyone has the right to life, liberty and security of the person” and cannot be deprived of these rights “except in accordance with the principles of fundamental justice.”
The charter also provides that all individuals are equal under the law and may not be discriminated against by the law on the basis of race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. This list of protections is more extensive than provided for in the Equal Protection Clause of the U.S. Constitution or than accepted by the U.S. Supreme Court. The charter also expressly permits laws, programs, and activities whose goal is “the amelioration of conditions of disadvantaged individuals.”
Signifying Canada’s bilingual heritage, the charter has extensive provisions dealing with the rights of French and English speakers. These include the rights of children to obtain instruction in their birth language, whether English or French, and the right to speak either language in Parliament and the courts.
Although the Canadian Charter of Rights and Freedoms has had legal effect only since 1982, it seems to have prompted Canadians to take their cases to courts in larger numbers, and it has prompted a greater constitutional activism than before from Canada’s highest court. The Canadian Supreme Court has followed the lead of the U.S. Supreme Court in several instances, striking down, for example, antiabortion legislation and laws restricting commercial advertising, and excluding evidence from trial if the defendant was not advised of the right to a lawyer.
V INTERNATIONAL CONCERNS
To establish the principles of civil liberties and civil rights on an international basis, the United Nations Charter was drawn up after World War II (1939-1945); it states that one of the purposes of the UN is to promote and encourage respect for “human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” In 1946 a UN Commission on Human Rights was established. In 1948 the General Assembly adopted a Universal Declaration of Human Rights prepared by the commission and embodying the 18th-century ideals of liberty, equality, and fraternity. This declaration, however, is not binding on member states.
Almost all nations deny civil rights to disfavored minorities within their borders. A major obstacle to international protection of human rights is the opposition of most countries to interference with their internal affairs, including questions of the rights of their own citizens. To some degree this difficulty has been overcome through regional arrangements and implementing bodies such as the European Commission on Human Rights and the Inter-American Commission on Human Rights.
The administration of President Jimmy Carter in the late 1970s introduced human rights as an element of foreign policy. This initiative was unevenly pressed and sometimes ineffectual, but it increased international awareness of the gravity of the problem of securing human rights for all people. The administration of President Ronald Reagan took a less aggressive stance on human rights violations, claiming that quiet diplomacy was more effective than public threats. During the administrations of Presidents George H. W. Bush and Bill Clinton, human rights issues became increasingly intertwined with international trade and commercial treaties. Controversy surrounded the granting of most-favored-nation status to countries alleged to have violated human rights, such as China. Most-favored-nation status guarantees that a country will receive the same terms offered to other trade partners in commercial treaties.
International revulsion at atrocities committed in several countries during the 1990s, including Rwanda and the former Yugoslavia, led to the establishment of international tribunals to try the most brutal war crimes. A permanent body, the International Criminal Court, began operation in 2002 to try individuals accused of war crimes, genocide, crimes against humanity, and crimes of aggression. Proponents said the existence of the court would help deter future human rights abuses. The United States does not participate in the International Criminal Court and does not recognize its authority.

No comments:

Post a Comment