Former Indiana Civil Liberties Union executive director, Sheila Kennedy, writes a very informative column in today's Indianapolis Star distinguishing between civil liberties and civil rights. Kennedy observes that "[c]ivil liberties are rights that individuals have against government." These rights are defined in the U.S. Constitution in the form of the Bill of Rights and subsequent amendments thereto, and in our own state constitution's complementary bill of rights. These "inalienable rights" Kennedy notes include among others "the right to free expression, the right to worship (or not) as we choose, and the right to be free from unreasonable searches and seizures." "Only the government can violate your civil liberties," Kennedy adds.
The federal Bill of Rights were added to the Constitution at the insistence of the people as a condition to the states' ratification of it. Not until after the Civil War and the enactment of the 14th Amendment to the Constitution were the Bill of Rights applicable, not just to the federal government, but to state and local governments as well, as Kennedy duly observes. The Equal Protection Clause of the 14th Amendment prohibits the government from treating equally situated persons unequally.
While civil liberties have been around since the adoption of our Constitution, Kennedy points out that civil rights have taken much longer. The federal Civil Rights Act was not enacted until 1964, which protects people against private acts of discrimination in employment, housing and education. Indiana actually enacted its own civil rights law prior to the federal law. Kennedy says, "There was a lot of resistance to civil rights laws, and there is still a widespread, if covert, attitute of 'What business does government have telling me I can't discriminate?'" "The fiercest resistance has come from people opposed to gays and lesbians," Kennedy adds.
Kennedy observes that opponents of gay civil rights try to confuse the issue by claiming that the "14th Amendment already protects gays, so amending Indiana's civil rights law, or Marion County's Human Relations Ordinance is unnecessary." Kennedy quickly adds, "They kn[ow] better." She comments on the astonishment of one of her students upon learning that it is perfectly legal in Indiana to fire a person for being gay.
While Kennedy's column focuses on the inability of people to understand the difference between civil liberties and civil rights, she may as well added that our own U.S. Supreme Court can't even agree upon what civil liberties are protected by the U.S. Constitution, or if they are protected, on what basis they are founded upon. Conservative members of our Court seem to believe that only those rights specifically delineated in the Bill of Rights are guaranteed to the people. More moderate and liberal members of the Court have recognized a so-called "penumbra" of rights that were reserved to the people upon the enactment of the Constitution. In particular, they cite the 9th Amendment which provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
As explained by Justice Goldberg in the now-famous 1965 Griswold v. Connecticut decision, [the Ninth Amendment] "was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected." In Griswold, the Court was faced with deciding the constitutionality of a state law regulating the use of contraceptives as a means of birth control. The Court struck down the statute, holding that it violated a person's "right to privacy."
Justice Douglas, writing for the majority, in striking down the Connecticut law said: "The present case . . . concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.'"
Dissenting conservative justices decried the opinion, arguing that no such right of privacy was guaranteed under the U.S. Constitution. As Justice Black explained: "The Court talks about a constitutional 'right of privacy' as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the 'privacy' of individuals. But there is not. . . I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."
Of course, the so-called "right to privacy" paved the way for the controversial Roe v. Wade decision of the Court in 1973, which guaranteed to women control of their reproductive rights; however, the Court shied away from Griswold's "right of privacy" as a basis. Instead the Court found a woman's right to an abortion as a fundamental right under the 14th Amendment. Gay rights advocates would later argue that state anti-sodomy laws directed against them violated their right to privacy. In Lawrence v. Texas, Justice Kennedy writing for the majority struck down a state anti-sodomy law as a violation founded upon liberty under the 14th Amendment. Kennedy said, [The "right to liberty under the Due Process Clause gives [people] the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter."
If it all sounds a little confusing, it is indeed. While the Court in each instance reached an outcome favorably disposed to fundamental notions of civil liberties, it reached each of its decisions in this line of cases on a different basis. What's the point of it all you might ask? We are now in the process of confirming a new justice to the Supreme Court to replace the retiring Justice Sandra Day O'Connor. O'Connor has been a moderate judge, erring on the side of liberty. Judge Roberts, her proposed replacement, has a very hostile view towards what he calls "judicial activism," which is shorthand for opposition to any broad interpretation of liberties guaranteed to the people by the Constitution. In particular, Roberts, like his former boss, Chief Justice William Rehnquist, believes there is no fundamental right of privacy guaranteed to the people as described in Griswold, whether founded upon the Bill of Rights or a liberty interest under the 14th Amendment as found in Lawrence v. Texas. That should give any proponent of civil liberties pause in supporting Judge Robert's elevation to the Supreme Court.
No comments:
Post a Comment