Civil Liberty Today
Elder G. Homer Durham
Director, Institute of Government, University of Utah
[Relief Society Reading, 1949]
It is all too common nowadays to take civil liberty for granted. Our forefathers could afford no such luxurious attitude. Most of the time, most of the people, in most of the world, have been slaves. Greek democracy at Athens was based on slavery. The Roman world knew little freedom so far as the majority of humankind was concerned. The nineteenth century, true, saw the expansion of civil liberty for significant, large groups of people, but chiefly in western Europe, the United States, and the British Dominions. Indentured servants and slavery in most western countries are now things of the past. Ownership of human beings has ceased to exist, generally, but new forms of control threaten the freedoms that flowered in the nineteenth century.
In order that we of the twentieth century may have some appreciation of our general situation, we might consider the facts that in Virginia, in 1625, forty percent of the population were indentured servants; that thirty-six per cent of the emigrants to Pennsylvania in the 1680s were bond slaves; that a Maryland statute of 1715 authorized not to exceed ten lashes “for any one offense” committed by these indentured founders of our social structure! After a few years most of these servants became free, acquired property, and established themselves as significant members of society. Slavery, too, flourished in America until the Civil War, numbering in 1700, about ten per cent of the population. Even among the humanitarian Quakers of Pennsylvania, the lot of the slave was not particularly happy, despite the fact that the leading figures of the abolition movement were eventually numbered among this group. A Pennsylvania statute of 1693 authorized any persons:
To take up Negroes, male or female, whom they shall find gadding abroad on the first days of the week without a ticket from their master or mistress … and to take them to jail, there to remain that night, and that without meat or drink, and to cause them to be publicly whipped next morning with 39 lashes, well laid on their bare backs, at which their said master or mistress shall pay 13d. to the whipper (Curtis P. Nettels, The Roots of American Civilization, 1940, page 326).
The First Amendment to the Constitution of the United States provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Together with the following nine amendments, this provision constitutes the Federal Bill of Rights. These amendments took effect December 15, 1791, some thirty months after the inauguration of George Washington under the new Constitution, framed in 1787, ratified in 1788, and put into effect in 1789. The establishment of American Federal union under a written Constitution in 1789 was itself a significant event for human liberty, even though the original document recognized and consented to slavery and traffic in human beings as property. This element, openly recognized in Article I, section 9, of the original Constitution, was supplanted by the Thirteenth Amendment, which, as a consequence of the Civil War, was proclaimed December 18, 1865. The Thirteenth Amendment, section one, declares:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Citizens of the United States today can look at their Federal and state constitutions and read the bases for their civil rights. But these provisions, as suggested by preceding examples, were won, inches at a time. They have found their way into the lives of men and women as the result of centuries of ceaseless struggle. It will require great intelligence and no little activity to perpetuate and enlarge upon them. The same thing can be said of the experience of other nations.
The very idea of a written constitution has a great deal of history behind it. Without probing into antiquity, it can be pointed out that in 1620 the Mayflower Compact of the Pilgrim Fathers constituted a written statement as to their objectives in civil society. In January 1639, the residents of Hartford, Windsor, and Wethersfield, Connecticut, adopted “The Fundamental Orders of Connecticut.” More significantly, perhaps, the written corporation charters of the Massachusetts Bay Company, the Virginia Company, the proprietary charters conferred by the British Crown upon the Calverts in Maryland, the Penns in Pennsylvania, and others, were transformed into the forerunners of our modern Constitution. In 1776 the various colonies in declaring their independence, drew up state constitutions. It was natural, therefore, for the combined colonies to draw up a written charter, the Articles of Confederation, for their loose, American league, whose legal existence extended from 1781 to 1789.
This previous constitution-making experience led to the Philadelphia Convention of 1787 which produced the instrument whose legal life commenced in 1789 and continues to the present day. December 15, 1791, stands out in constitutional history as the effective date of the first ten amendments. The Bill of Rights added to the Federal charter the idea that not only should a constitution limit and describe the sphere of government, but that the Constitution should limit the role of government further by describing the sacred sphere of human liberty into which government shall not enter. Incorporated into the Bill of Rights were the significant guarantees declared in the older state constitutions, which in turn embodied the experience of the race, particularly the tradition of English liberty.
English liberty made its strong advances in the century after the founding of Jamestown (1607). Therefore, American liberty is not entirely a re-copy of English experience. It is true, however, that the principle of personal freedom can be traced to Magna Charta (1215). But the Petition of Right (1629), the Habeas Corpus Act (1679), and the Bill of Rights attending the Glorious Revolution of 1688-89, made the principles effective and available for embodiment in the written Constitution peculiar to American experience.
Today, in the United States, rights of personal liberty may be classified under two headings:
1. Substantive (in the words of Professors Ogg and Ray), those “pertaining to the fact and essence of freedom.”
2. Procedural, “relating to the methods by which freedom is protected.”
Substantive rights often emerge first. Even if written, as in the Soviet Constitution, substantive rights are meaningless unless accompanied by procedural rights. It is the glory of Anglo-American liberty that our constitutional law not only contains, but generally has expanded, procedural guarantees of substantive rights.
The net result, in the United States, is that the individual citizen is surrounded with three layers of legal-constitutional remedies to maintain his liberty:
1. If interfered with by another individual or private group, he has the remedies of the ordinary law, in both Federal and state courts, depending on the nature of the case.
2. If interfered with by a state government, a county, a city, or any other subdivision of a state, he has the remedies of ordinary law, plus the state constitution and its bill of rights, plus those features of the Federal Constitution, particularly the fourteenth amendment, which limit the power of the states (“… no state shall pass any law … depriving any person of life, liberty, or property, without due process of law”).
3. If the Federal government or any of its instrumentalities, from the army to the post office, interferes with individual rights, the person has recourse to ordinary legal remedies provided by Congress, plus the Bill of Rights and additional safeguards found elsewhere in the Federal Constitution.
This system of protections, in law, in state constitutions, and in the Federal Constitution, embraces the following substantive and procedural rights:
The substantive guarantees include:
1. Immunity from slavery and involuntary servitude
2. Freedom of religion
3. Freedom of speech and press
4. Right of assembly and petition
5. Right to keep and bear arms
6. Equal protection of the laws
7. The restriction of treasonable offenses to a narrow, constitutional fixed, margin
The principal procedural guarantees include:
1. The forbidding of bills of attainder (punishment by political legislation without judicial trial)
2. Forbidding of ex post facto laws (criminal legislation enacted after the previously-supposed innocent act was committed)
3. Guarantee of judicial process by grand jury indictment
4. The writ of habeas corpus
5. Trial by jury
6. Protection of privacy from unreasonable searches and seizures
7. Due process of law whenever life, liberty, or property are affected
On these hard-won liberties, incorporated into American constitutionalism, rest the great social, economic, and political advantages of a richly-endowed nation.