Against Civil Liberties creep

Great Debates
1

Civil liberties are a great idea. Indeed, regardless of what Ken Burns may have told you, they are America’s best idea. However, for the concept of civil liberties (or civil rights) to have weight, there must be a definition of them. In the past, those who fought for civil liberties were most likely to point to the Constitution, with its clear guarantees of freedom of religion, freedom of speech, freedom of the press, trial by jury, equal protection of the law, and so forth. In more recent times, the use of the words “civil rights” in contexts such as the Civil Rights Act have lead most people to accept a definition of the term that expands beyond what’s specifically in the Constitution.

In the past few years, however, many people have started using the words “civil liberties” or “civil rights” to describe, well, more or less anything that they want. As an example, this article by Dahlia Lithwick and Mark Joseph Stern purports to list the 10 worst “civil liberties nightmares” of the year. It includes actual violations of civil rights: torture, torturous executions, and civil forfeiture, to name three. While the authors don’t specifically state why these things are violations of civil liberties, any informed American knows that they violate the Bill of Rights. (For the record, torture and painful executions violate the 8th Amendment, while seizing someone’s property without a trial or even a charge violates the 5th.) But on that same list, the authors include the Hobby Lobby and McCutcheon Supreme Court decisions. They don’t explain why either of these is a civil liberties violation. In the case of the Hobby Lobby decision, they write that it “invites our corporate bosses to take away our birth control”. This is untrue, of course. Pre- or post-Supreme Court decision, anyone can buy birth control anywhere in the USA, or acquire it from any of the vast number of places that give it away for free. They write that McCutchoen will “give the wealthy unlimited power”. The ability to exceed the previous donation limit of $123,200 is not “unlimited power”; no person, regardless of how much they donate, can force anyone to vote any way in any election. But most tellingly, the authors make no attempt to argue that either decision violates the Constitution. In fact, both decisions expanded First Amendment rights, and thus are victories for civil liberties.

If we want to have a vigorous defense of civil liberties in this country, it’s necessary to have a clear definition of what they are. If we stick to the basic list of the Constitution, or even the expanded list of the Civil Rights Act, then we have a clear list that every decent person can support. On the other hand, if the words “civil liberties” and “civil rights” comes to mean merely a poorly-defined, ever-changing blob of idea of which some are in the Constitution, some aren’t written anywhere, and some contradict the Constitution, then it’s unlikely to get broad support. Many people are disappointed–rightfully–by the collective yawn and shrug that most of the American public gives to such issues as torture, botched executions, police brutality, and civil forfeiture. But if we want the American people to collectively stand for civil liberties, we need to start by being clear about what they are.

2

Let me guess. The ones you want cut out are the ones you don’t personally agree with.

3

I disagree. The key is still “equal protection of the laws.” That’s what won the war for gay marriage, and what will probably win the war for transgender issues.

Another key constitutional phrase is, alas, more debated, and that is separation of church and state. People who want more entanglement note (correctly) that the phrase, per se, does not appear in the constitution. But the phrase that does appear, " . . . no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . " is enough for a solid basis for defense against most theocratic intrusions.

The constitution is still the basis for the Civil Rights movement, and it is one enormous movement, even if there are those who would attempt to divide it against itself.

4

If only the people who wrote the Constitution had the foresight to tell us that the list of rights in the Constitution wasn’t complete; that, in fact, there are such other unlisted rights that shouldn’t be denied or, picking a word at random, disparaged, just because they weren’t listed (or as some would say, “enumerated”). That certainly would clear things up a bit.

5

I’ll give you 1 out of 2. Your (exceedingly brief) summary of the objection to the Hobby Lobby decision in the link is quite good, and accurate. This is not a civil rights issue. However, your (again, exceedingly brief) summary of the McCutchoen decision is inaccurate, at best, and misleading, at worst. To quote from your link:

The claim is not that McCutcheon is important, but that it signals what the authors expect the court to do in the future, not what the court did in that case.
Your summary:

That is not what they wrote.

BTW, your OP is really a mess. You seem to want to talk about some broad, sweeping trend, and then suddenly switch to one very specific article. Better to stick to that article and debate the items therein.

6

Goodness, it sounds like you’re experiencing a good deal of concern over this. It’s fortunate that we have stalwart Americans like you to serve as a limitless fount of concern over the precise definition of civil liberties, lest such liberties be extended to less deserving and less concerned parties. Again, we owe you a debt of gratitude for your concern in this matter.

7

So what does the OP want in practice? Pretty much any change I can envision would require a Constitutional amendment.

One route would be to somehow disempower the Supreme Court so it no loner has the power to interpret and/or invalidate legislation.

Another route would be go whole hog on a constitutional convention, to “un-muddy” all that confusing language leading to what the OP sees as problematic.

Do you see a path that doesn’t involve very fundamental changes to the Constitution itself?

8

A conservative says the words “civil liberties” and gets lambasted.

Another solid showing, Dopers.

9

Do you think the OP gave an accurate description of the objection the authors of his link had to McCutcheon?

10

If he didn’t want an argument, why did he post it in GD?

11

I think you gave a quote from the link and then a sentence later said that a word-for-word repetition of that quote was not what they said.

Perhaps the writers of the article should reconsider their wording if it does not accurately reflect their intent.

Beyond that, the OP is making the point that defining civil liberties is difficult and then gave examples of how conservatives differ from liberals on interpretation.

The smarmy responses were unwarranted and revealing.

12

If it makes you feel any better…

I was just reading that the policemen’s union in NYC wants crimes against cops to be prosecuted as hate crimes, which I think is a stupid idea.

It’s a twofer! A liberal who’s against a union and an expansion of civil liberties!

13

A few questions to ponder.

Does the Hobby Lobby Company have religious beliefs and does the First Amendment protect its freedom of religion? Or is it the CEO of Hobby Lobby who has a civil right to practice the religion of his choice?

Does everyone have equal civil rights under the law? Or are some people entitled to more rights than others?

Does an employee of the Hobby Lobby Company have the same civil rights as the CEO of the Hobby Lobby company?

Does an employee of the Hobby Lobby Company have the right to impose his religious views on other people? Does the CEO of the Hobby Lobby Company have the right to impose his religious views on other people?

14

And likewise, your side wants to simply add the ones you agree with

It is not that simple. Taken to its literal extreme “equal protection of the laws” means that every.single.law is unconstitutional because a law making X illegal treats people who would like to do X differently than those who have no interest in doing X.

So we need to define precisely what that term means which takes us right back to the problem the OP poses.

15

What a strange thread. The Bill of Rights contains some civil rights, sure, but in no way does it cover them all. If it did, the 13th, 14th, and 19th Amendments would not have needed be passed.

16

I think the OP’s point was looking to the Bill of Rights gives a clear and mutually agreeable idea of what civil liberties are. Absent that, “civil liberties” become synonymous with “I like this idea.”

There is a mechanism within the constitution to change the constitution. Hence, it’s possible to add to the list of civil liberties.

17

Since no one follows that principle of constitutional interpretation, your observation seems somewhat meaningless.

Taken to the same absurd extreme, very nearly every living American is a traitor, for “adhering to their enemies,” i.e., saying something critical of the U.S. government.

18

I’m not sure I agree with the notion that there is such a neatly defined list. What does “freedom of religion” mean when the rubber hits the road? Decent people on both sides of the Hobby Lobby case argued about how that phrase applied; it’s not such an obvious expansion of First Amendment rights if one of the side effects is that employees of the corporation might have certain decisions constrained by the religious beliefs of their bosses.

Similarly, freedom of speech means what, exactly, when applied to libel or pornography or commercial speech or official secrets or flag-burning? Are you attempting to argue that “decent people” will universally adhere to just one side in such disputes?

19

I was responding to your post in which you claim that the equal protection clause is the “key.” That ignores the question of what equal protection means.

Putting aside the point that most civil liberties have been found in the substantive portion of due process clause, the equal protection clause doesn’t go as far as my hypo, nor is it merely limited to recently freed black male slaves as contemplated by the drafters of the amendment.

Where it falls on that line is a matter of interpretation and not at all clear. You mentioned same sex marriage as a battle “won” without noting that at least 4 and possibly 5 Supreme Court justices disagree with your equal protection clause interpretation. If the top legal jurists in the country are so split on something which you consider obvious, then your test is likewise meaningless.

20

Hobby Lobby was not a First Amendment case. This has been repeated in many threads. Please read the opinion. The First Amendment does not protect Hobby Lobby’s corporate policy. The Religious Freedom Restoration Act, passed by Congress and signed into law by Bill Clinton, is what allows Hobby Lobby an exemption from the ACA.

For all of the left’s moaning and whining about the decision, they should have repealed the law when they had 60 votes in the Senate if they are concerned about the horrors of living in a society without free abortifacient birth control.