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Civil rights are legal protections of individuals or groups from certain forms of oppression that gained widespread acceptance throughout the world in the last half of the twentieth century and continuing into the twenty-first century. The origins of civil rights can be found in practices of governments or powerful individuals or institutions that came to be viewed as oppressive, although these are often obscured in foundational or origin stories that take on an abstract, timeless quality. The most common civil rights are prohibition of discrimination based on race, ethnicity, religion, and gender; the right to personal security, including protections for persons accused or suspected of crimes; the right to vote and to participate in democratic political processes; and freedom of expression, association, and religion. Civil rights lose their significance if they are not available to all people, but the failure to acknowledge conflicting rights and the interconnectedness of rights, interests, privileges, and expectations has made acceptance of civil rights advances more difficult than it has to be, particularly in countries where rights tend to be articulated in absolutist terms. The most troubling questions about civil rights have centered on which rights are protected, their content and formulation, and their enforcement. The model of judicial primacy in the United States produced two periods of historic protection of civil rights available to people of ordinary means, but no single source or enforcement mechanism for civil rights has proved consistently superior to others. Establishment and enforcement seem most effective when accomplished by popular and participatory means, and popular understanding of the importance and history of civil rights is probably the most significant factor in their continued vitality.
- Origins of Civil Rights
- Scope of Civil Rights
- Universal, Absolute, and Conflicting Rights
- Formulation and Enforcement: The US Model
- Prospects for Civil Rights
Civil rights legally protect individuals or groups from certain forms of oppression. While civil rights are commonly associated with the 1960s movement in the United States to establish equality for people of African descent and – more generally – with the US Bill of Rights, by the end of the twentieth century their reach and recognition was global. In modern political, academic, and public usage, civil rights embody, and provide legal support for, basic concepts of human dignity and respect for individuals and groups in their diverse cultures and ways. In the second decade of the twenty-first century, recognition and enforcement of civil rights, or some assortment of the most fundamental civil rights, are widely understood as a necessary element of freedom, democracy, and equality.
International bodies, treaties, and courts – and many countries – prefer the term ‘human rights,’ which usually encompasses a broader array of rights and places different priorities on some particular rights than does US civil rights law. The United Nations Charter, the Universal Declaration of Human Rights (1948), and many other human rights treaties and covenants, including recently the U.N. Declaration on the Rights of Indigenous Peoples (2007), protect social, economic, and cultural rights as well as political and civil rights. These rights often place affirmative obligations on governments to provide all their people with minimal nutrition, healthcare, housing, and education. Eleanor Roosevelt, criticizing the US reluctance to include economic and social rights, put it this way: “You can’t talk civil.”
Civil rights are usually established in a written constitution, statute, or treaty. However, they have been based on unwritten constitutions and have occasionally arisen from the pronouncements of monarchs and conquerors, perhaps most famously Napoleon.
These sources of civil rights protections are not self-executing: some countries have strongly worded civil rights provisions in written constitutions that are not enforced; the meaning and interpretation of civil rights provisions are usually controversial; and despite the prevalence of civil rights aspirations and rhetoric, no country has as yet found a reliable method for systematic, consistent protection of civil rights.
Origins of Civil Rights
The origins of some civil rights go back almost a thousand years to the earliest limitations on governments, which at least indirectly protected individuals. Civil rights as such emerged in the seventeenth and eighteenth centuries, as social development and political and philosophical thought emphasized the individual and, later, based national sovereignty and legitimacy on democratic forms of government. However, systematic legal enforcement, and even widespread aspirational recognition, of civil rights did not occur until after World War II. They quickly achieved global acceptance in the last half of the twentieth century; today the laws of almost all countries, and several widely adopted international pacts, at least purport to protect some array of fundamental rights of individuals.
Approached historically and contextually, the various civil rights can be traced to practices by governments or by powerful individuals or institutions that came to be viewed as oppressive. Thus, the Fourth Amendment to the US Constitution limiting police searches was a response to the dreaded house-to-house general searches by British authorities in the colonial period. However, such origins are often obscured, because civil rights – like other basic legal precepts – are usually analyzed and clothed with the rhetoric of foundational principles and tend to take on, in law as well as in politics and fiction, an abstract, timeless quality that transcends history, experience, and human agency. This occurred in the United States with freedom of speech, which has acquired a major place in the national origin story, although its most significant features developed in the mid-twentieth century by common forms of social change (Kairys, 1982; Levy, 1985).
Scope of Civil Rights
The most common civil rights are equality based on race, ethnicity, religion, and gender; the right to personal security, including protections for persons accused or suspected of crimes; the right to vote and to participate in democratic political processes; and freedom of expression, association, and religion. Additional civil rights are emerging from political, legislative, and judicial processes in a range of countries and internationally. Privacy, which in the US system encompassing personal security and autonomy as well as control over personal information, is of growing concern throughout much of the world. The rights of indigenous peoples (U.N. Declaration on the Rights of Indigenous Peoples (2007)) and sexual preference minorities have recently gained substantial recognition.
Personal security was the first, and remains the primary, civil right. It was a major focus of leading Anglo-American legal authorities, from William Blackstone (1769/1992) and St. George Tucker (1969) to Thomas Cooley (1874). The path-breaking civil rights text by Thomas Emerson and David Haber (1952) considers the right to personal security first and describes its significance in the introduction: “In a society based upon human dignity and the development of the individual personality, clearly all members are entitled to security of the person – protection from bodily harm, involuntary servitude, and the fear of physical restraint.” Although the rights of criminal defendants in the United States are commonly thought to originate in the 1960s Supreme Court rulings, the US Bill of Rights has as its major subject and most numerous protections a series of limits on the government’s power to punish individuals criminally.
Although the United States was an early standard bearer and innovator on civil and human rights, the current content of human rights around the world often exceeds or precedes specific US civil rights protections, including prohibition of the execution of children and mentally disturbed adults, protections against domestic abuse, and a range of social, economic and cultural rights. Other nations also place different relative importance on various rights, such as rejecting absolutist free speech rights and emphasizing equality rights (Movement Raelien Suisse vs Switzerland, 2012). While the United States has adopted most of the human rights treaties and covenants (although often with specific reservations), US courts have not consistently enforced them. The United States is also unusual among the nations of the world in its renewed and continuing embrace of capital punishment and in the retrenchment of procedural and fair trial rights to expedite executions.
In most countries, civil rights protect individuals from their governments, but protection for groups and from other individuals have also been recognized (Kichwa Indigenous Community of Sarayaku vs Ecuador, 2012). Prohibitions of slavery around the world limit individuals as well as governments. Equal rights for women have included limits on individually inflicted violence against women and recognition of the rights of women as a group. Group rights have also been recognized in some jurisdictions for indigenous peoples, ethnic minorities, children, and the disabled.
Universal, Absolute, and Conflicting Rights
Civil rights lose their meaning and importance if they are not extended to all people. However, the universality of civil rights, both within a particular country and across national borders, and the common notion that extension of civil rights to those previously denied them has no effect on others are problematic.
Typically, recognition of civil rights disturbs a status quo in which privileges and hierarchies were entrenched. If previously silenced speakers or voters gain the rights to speak and vote, the effectiveness of the voices and votes of the previously privileged is diminished. Abolishing racial discrimination in employment or college admissions diminishes the prospects of the previously privileged. Abolishing racial discrimination in public accommodations diminishes the freedom of association of those who wish to exclude racially. Recognition of the rights of people who have been oppressed involves a determination that the interests, expectations, tastes, and sometimes civil rights of others constituted an illegitimate or disproportionate privilege which came only at the expense of that oppression, and to which they should not have been, and no longer are, entitled. The failure to acknowledge the interconnectedness of rights, interests, privileges, and expectations has probably made acceptance of civil rights advances more difficult than it has to be. This has been a substantial problem in the United States, where interconnectedness is only acknowledged for affirmative action and where civil rights tend to be articulated in absolutist terms.
Absolutist conceptions of civil rights usually rest on the same thinking, memorably critiqued by Justice Oliver Wendell Holmes’ famous example of shouting ‘fire’ in a crowded theater. Words have effects, otherwise we might not be so fond of them, and in some circumstances those effects outweigh the value of speech. Such occasions are rare, but they do exist – for example, where one person’s speech is interfering with or drowning out another’s or all others. Nevertheless, the US Supreme Court has protected electoral campaign finances as speech in absolutist terms that make even minimal regulation difficult or impossible (Buckley vs Valeo, 1976; Citizens United vs FEC, 2010). The Court characterized money as speech, and refused to recognize as significant or legitimate countervailing concerns the importance of fair elections to society and other individuals or the speech rights of those whose voices cannot be heard in money-driven elections.
Absolutist conceptions of this sort, though often articulated by staunch advocates of individual rights, are reminiscent of the ‘Lochner era’ in the United States, in which the civil right to due process was used by the Supreme Court to invalidate a series of economic reforms aimed at protecting working and poor people. The combination of an absolutist formulation and a civil right based on unrestrained free enterprise yielded one of the most notorious eras in US constitutional law. These rights that people around the world seek and rely on for protection from powerful individuals, groups, and institutions, often at considerable personal sacrifice, can become another instrument for the powerful (Kairys, 1993, 2013).
There is also a fundamental sense in which all civil rights protect individuals by limiting others – either all others collectively, because civil rights prohibit certain actions by majorities and governments, or individually, in the situations in which civil rights protect against private as well as governmental actions. Thus, civil rights both bestow and limit freedom. They limit the ability of even democratically constituted governments, for example, to discriminate against a racial minority or to ban an opposition political party, by placing the individual’s or minority’s rights above collective power (West Va. Bd. of Educ. vs Barnette, 1943). Civil rights are, in this sense, both a limit on and a necessary feature of democracy.
These tensions permeate heated controversies about the universality of civil rights across national borders. The conventions on the rights of women referred to above have been the subject of an unusual array of national reservations, usually on the ground that they clash with cultures and religions, which also can claim civil rights protection. For example, the UN General Assembly has called on countries to eliminate female genital mutilation because it violates several of the most fundamental and generally accepted civil and human rights, although it is mandated by some cultures and religions.
Formulation and Enforcement: The US Model
The US tradition of extensive judicial power, which includes judicial innovation beyond the specific language of a constitution, statute, or treaty, is gaining some acceptance internationally. This expanded acceptance is in part due to its reputed tendency to protect civil rights, although the role of courts in civil rights matters (and more generally) is controversial in the United States. Many other countries have tended to rely on international human rights treaties or legislation. Courts lack the democratic legitimacy of legislatures, while their very distance from democratic processes could enhance the potential for protection of individual rights against even mobilized majorities. Protection of individuals and groups from majoritarian oppression is the hallmark of meaningful civil rights and provides the best measure of a particular society’s civil rights record. A closer look at the history and record of a particular country – the United States, because of its historical role and wide recognition as a leader and model for civil rights – demonstrates both the potential and the difficulty of sustained, systematic protection of civil rights.
The role of courts in the civil rights victories of the 1960s and throughout US history is often exaggerated (Kairys, 1993, 2003, 2006; Cover, 1976). Integration of public schools (Brown vs Bd. of Educ. 1954) was a milestone, but most aspects of equality for African Americans in the twentieth century were established by the US Congress. In the 1960s these included banning racial discrimination in voting, housing, employment, and public accommodations. The major civil rights advances of the nineteenth century were achieved by constitutional amendment and legislation.
The history of US courts reveals them to be more often an obstacle to than a protector of civil rights. For example, the US Supreme Court ruled in 1857 that African Americans have ‘no rights which the white man is bound to respect’ and are not fully citizens or human beings (Dred Scott vs Sanford), which destroyed the Missouri Compromise on slavery and was a contributing cause of the Civil War; approved segregation even after the Civil War amendments to the Constitution (Plessy vs Ferguson, 1896); negated the ‘privileges and immunities’ clause of the Fourteenth Amendment (Slaughterhouse Cases, 1873), which applied civil rights protections against the states; refused to protect even the most basic free speech rights until the 1930s (Davis vs Massachusetts, 1897; Kairys, 1982); and approved the imprisonment of all persons of Japanese ancestry on the west coast during World War II without any charges or proof of individual guilt (Korematsu vs US, 1944). Generally, throughout US history, oppressed minorities and individuals facing repression by government or organized majorities – including in modern times the repressive McCarthyism of the 1950s – have not been significantly protected by the courts.
There are only two periods in US history characterized by systematic and sustained judicial protection of such civil rights, from about 1937 to 1944 and from about 1961 to 1973. Both these periods occurred in the context of sustained mass popular support and successful legislative initiatives for civil rights, which in the US system seem necessary (but not sufficient) for systematic protection. During these periods, the Supreme Court established a system of limited government and protection of individual rights available to people of ordinary means probably unrivaled in world history, including strenuous protection of speech, association, and privacy; procedural and substantive rights of persons accused or suspected of crime; the rights of women; voting and participatory rights; and prohibitions of discrimination (Kairys, 1993, 1998, 2006, 2013; W. Va. Bd. of Educ. vs Barnette, 1943).
The main judicial vehicle for protecting civil rights in these two periods was the ‘strict scrutiny’ standard of judicial review, by which any government action that infringed or restricted these rights was strictly scrutinized and presumptively invalid, surviving only if supported by a ‘compelling’ government interest that could not be furthered by ‘less restrictive’ means. While these decisions seldom articulated absolute rights (although absolutist rhetorical flourishes were common), in practice strict scrutiny meant near certain invalidity.
Starting in the mid-1970s, as the national political mood changed and more conservative justices were appointed to the Court, the Supreme Court repudiated or significantly diluted almost all of the major civil rights advances of the post-World War II period. This retrenchment was led in the political arena by President Ronald Reagan and a conservative movement that emphasized limiting government and espoused the sometimes extreme distrust of government evident in many periods of US history (Wills, 1999).
The thrust was to empower the people by limiting the courts – in the popular phrase, ‘judicial restraint’ – which, paradoxically, strengthens government and weakens individual rights. Thus, this conservative judicial restraint trend reviled the 1965 case establishing a civil right to privacy (Griswold vs Conn.), a decision that protected the individual and the people generally from a state law that banned all use of birth control. A judicially based system of protection of civil (or any other) rights requires the courts to intervene when government is infringing on protected rights, and conservative justices have not hesitated to intervene to protect civil rights they value (e.g., Buckley vs Valeo, 1976; Shaw vs Reno, 1993). Historically, the pattern in the United States has been advocacy of judicial restraint by those whose values and approaches are being rejected by the courts. Perhaps the most vehement and successful advocate of judicial restraint was liberal President Franklin Roosevelt, whose reforms were struck down by a Supreme Court intent on imposing unrestricted laissez-faire economics (Kairys, 1998).
In this retrenchment, the rights to exercise nonmainstream religion and against establishment of religion were substantially undercut, including the refusal to protect a Native American religious ceremony that pre-dates Christianity (Empl. Div. vs Smith, 1990). Speech rights available to people of ordinary means were retrenched (for example, the public areas and circumstances available for protest were substantially narrowed), while speech rights available to corporations and wealthy individuals were enhanced, including recognition of corporate free speech rights. The equality rights of minorities were undercut by adoption of virtually insurmountable burdens of proof, resulting in denials of relief for some egregious practices left over from segregation. The equality rights of the white majority were enhanced, resulting in successful challenges to electoral reapportionment and affirmative action, even where they were good faith remedial efforts to end discrimination against African Americans and other minorities. As a result, almost all the winning parties in racial equality cases decided by the Supreme Court in the last few decades of the twentieth century and continuing into the twenty-first were white. The US attempt to end centuries of discrimination that included slavery and forced segregation was short and mostly limited to erasing de jure discrimination; the mass of African Americans live in the same segregated poverty they endured under de jure segregation (Kairys, 1993, 2006, 2013; Memphis vs Greene, 1981; Richmond vs Croson, 1989; Shaw vs Reno, 1993).
This retreat was accomplished by a range of judicial means. In some areas, such as exercise of religion and some aspects of privacy, the Court withdrew strict scrutiny protection. In others, such as equality, establishment of religion, and some aspects of free speech, a range of new rules made it near impossible to prove a violation – such as the requirement for proving that government not only violated a civil right but did so purposely, with animus or the specific motivation to violate the right.
None of these new rules is required by the language of the US Constitution or by rules of legal reasoning or analysis; nor is the strict scrutiny standard that was used to protect civil rights. This is characteristic of the judicial model, which in the United States yielded cyclic protection of civil rights in some (not all) periods in which support for those rights had strong, sustained, and politically mobilized support (see Kairys, 1998, 2003, 2008).
By the end of the twentieth century, the lead in civil rights had passed from the United States to other nations and to international human rights tribunals and agreements. The Constitutional Court of South Africa led a worldwide trend to ban or limit the death penalty (State vs Makwanyane, 1995). The European Court of Human Rights protected the rights of gay men and lesbians (Dudgeon vs United Kingdom, 1981); the Supreme Court of the United States initially rejected such rights (Bowers vs Hardwick, 1986), then accorded them some protection (Lawrence vs Texas, 2003). The rights of racial minorities and women were advanced principally by international human rights agreements. Progress in this direction has come mostly as a result of international human rights agreements and the growing sense they represent that oppression and repression, though they have hardly ceased, are no longer internationally acceptable.
Prospects for Civil Rights
Since civil rights can encompass a variety of possible limits on government to protect individuals and groups (and some limits on other individuals and affirmative obligations of governments), the details of their substance, context, and history are necessary for an understanding of their social meaning and importance. In this sense, it is hard to say that any of us is ‘for civil rights,’ and perhaps harder to say we are ‘against civil rights’ (which might mean government without limits), without specifying whose rights, which rights, and the context. For some, government is most oppressive when it limits gun ownership or attempts to overcome the effects of past discrimination; for others, it is most oppressive when it limits exercise of religion, abortion rights, or the rights of historically oppressed minorities. In the post-World War II period, the United States set an international standard for protection of minorities and the enforcement of a range of civil rights that protect the individual from oppression by government and powerful majorities; but US history also demonstrates the fragility of civil rights, and the use of civil rights to insulate the powerful from popular reforms aimed at protecting working and poor people.
Civil rights have played an important role in the advancement of human dignity, respect for the ways of diverse cultures and individuals, and democratic forms of government. In a relatively short time in the last half of the twentieth century, racism moved from acceptable or trivial to wrong (Kairys, 2006), and a deep sense of civil rights and fair play became an international intellectual, moral and political standard. However, this has not stopped – by any reasonable measure – racial, ethnic, religious, and national oppression or violence, or the routine denial of the range of basic civil rights. There is a substantial and troubling divide between our words, aspirations, and moral precepts on the one hand, and our actions on the other. We may be a species whose gift of reason and empathy has outpaced its habits of survival, which still reside – as if helpless to listen to our own pleas – in deep-seated (perhaps significantly genetic) tribalism. If this is so, the struggle for civil rights and human dignity will be long, indeed, but all the more compelling.
No single source or enforcement mechanism for civil rights has proved consistently superior to others. Establishment and enforcement seem most effective when accomplished by the most popular and participatory means available, and popular understanding of the importance and history of civil rights is probably the most significant factor in their continued vitality.
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