Front Page Titles (by Subject) II: Civil Liberties - Literature of Liberty, April/June 1978, vol. 1, No. 2
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II: Civil Liberties - Leonard P. Liggio, Literature of Liberty, April/June 1978, vol. 1, No. 2 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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To what legal and civil rights are individuals entitled? How free and immune are citizens in the pursuit of their independent choices and actions, especially when such choices and actions are unpopular?
Our next group of summaries explores the often controversial claims of individuals to live freely in civil society, protected in their persons and nonviolent activities.
The historical panorama of America's fitful protection of various civil liberties opens this sequence. We then survey narrower issues, including the right to die, the parents' right to choose education, the right to bear arms, and the debated right to read or view pornography. The concluding topic comes full circle and raises sobering doubts about how consistently the legal system extends civil liberties and impartial justice during emotionally charged times.
Liberty in America
“American Liberty: A post-Bicentennial Look at our Unfinished Agenda.” The Civil Liberties Review 4 (May–June 1977): 38–51.
America's experiment with liberty has been a love-hate drama concerning civil liberties.
This drama divides itself into three historic acts: the colonial, rural America from its beginnings to Jacksonian democracy; nineteenth century industrial America ending in the Great Depression of the 1930s; and welfare-warfare America from the New Deal down to today. The leitmotif of this entire drama has been the tension between the rhetoric of freedom or natural rights and their repression.
Freedom emerged in early, republican America because no single group could capture the federal government and impose conformity. Pluralism and the mobility of a spacious America allowed freedom despite narrow and intolerant local communities which curbed individual dissent.
The early federal government repressed popular protest for rights and civil disobedience (e.g., the Whiskey and Fries rebellions). Freedom of religion, however, was nurtured by disestablishing state churches, and free speech progressed. Still, local communities were illiberal centers ruled by authoritarian elites. And despite the Declaration's and Constitution's words, freedom overlooked aliens, blacks, and women.
The second act of the drama of liberty, staged during the century from Jackson to Roosevelt, marks the low point of American civil liberties. Four areas of freedom dominated this turbulent epoch: the treatment of racial minorities; the treatment of workers in an emerging industrial society; the treatment of immigrants by native Anglo-Saxons; and the treatment and legal status of women.
Black slavery ended after the Civil War, but the new-won “freedom” accompanied low socioeconomic status and segregation. Racism, government imposed reservations, and “blaming the victim” poisoned Indian relations.
Meanwhile workers, white and black, struggled to form unions against business elites which controlled government, regulatory commissions, the courts, and police. The federal government also bolstered xenophobia against aliens by branding some “radicals” in order to deport them. Finally, women only gradually won freedom from legal disabilities involving income, property, divorce, and the vote.
Throughout the second period, government suppressed freedom of dissent in time of war (e.g., Lincoln's and Wilson's administrations). Censorship and sexual suppression, enforced by government edicts, operated on both local and national levels.
Franklin D. Roosevelt's New Deal ushered in the last 45 year long act of America's conflict between freedom and its repression. In this period, government has not been the consistent friend of freedom because of self-interest and pragmatism. Modern America also has been burdened by the repressive hand of bureaucracy, expanding government, and the growth of laws together with their discretionary enforcement. Progress, however, was evident in civil rights for workers and blacks, in the waning of censorship, and in legal safeguards.
Repressive trends also continue. Racial progress has been plagued by discrimination. The government erected detention camps for Japanese-Americans and restricted free speech through loyalty programs and the 1939 Hatch Act. Federal agencies such as the FBI and CIA invaded citizens' privacy through wire taps and computerized dossiers, while simultaneously protecting its own political secrets.
“Governments, courts, other power centers, and individuals have always been ready to balance freedom against competing social values and circumstances.”
State Schooling and Freedom
“The Separation of School and State: Pierce Reconsidered.” Harvard Educational Review 46 (February 1976); reprinted in Studies in Education No.3. Menlo park, California: Institute for Humane Studies, Inc., 1977.
A first amendment interpretation of the Supreme Court's 1925 decision in Pierce v. Society of Sisters suggests that the present state system of compulsory attendance and financing of public schools fails to satisfy the principle of government neutrality toward family choice in education and values.
The fifty year old Pierce decision declared unconstitutional a 1922 Oregon statute which required that each child of school age attend a public school. The basis of the Court's ruling was ambiguous. Did the Court intend to affirm due process and the “property” right of nonpublic schools to exist, or did it guarantee a distinct parental right to direct their children's education apart from the majoritarian state system of schooling? The Court's opinion mentioned the private schools' request for due process “protection against...destruction of their business and property”; simultaneously, it raised a potential first amendment consideration in holding:
“The child is not the mere creature of the state.”
Despite the Pierce decision, Americans have invaded an individual's civil liberty by using the public school system to democratically impose values and beliefs on dissenters who cannot afford private education. Issues of sexual morality, secularism, authoritarianism, and race have become politicized, and values are given state sanction and force when imbedded in public school curricula. It is impossible to eliminate value inculcation in education or expect value-neutral education in secular public schools. The only means to achieve such neutrality would be to apply the guarantees of the First Amendment (separation of state and religion or values) to a reading of the Pierce decision and to have the state allow families the maximum practicable choice in selecting their children's education.
The Pierce ruling, from the First Amendment perspective, preserves the right to reject democratically imposed educational values in child rearing. It is reasonable to apply the First Amendment to Pierce. An implication of this amendment is the protected right of an individual's consciousness and convictions to be free of state coercion. Parents should not be artificially constrained, through taxation, to surrender their children to government school systems espousing beliefs contrary to their own.
Government benefits of schooling ought not be purchased by sacrificing an individual's first amendment rights. Tax financed systems of government education which stipulate that parents may take advantage of “free” education only if they surrender their Pierce guarantees of freedom of conscience and values are not lawful. Other less restrictive systems which respect the right of free choice in education are both practical and more in harmony with the spirit of the First Amendment interpretation of Pierce. The “equal protection clause” of the Fourteenth Amendment is another constitutional barrier. It would ban the plight of poorer citizens who must now reluctantly send their children to public schools because, after paying taxes, they cannot afford private schooling.
The form of compulsory schooling backed by the state power of taxing and police powers manifests deeply disturbing and often unconstitutional effects.
The Right to Bear Arms
“Why a Civil Libertarian Opposes Gun Control.” The Civil Liberties Review 3 (1976): 24–32.
Following the political assassinations of the 1960s, gun control moved to the forefront of the liberal legislative agenda. However, it may be argued that those of liberal or civil libertarian convictions should oppose gun control. Gun control would lead to greater governmental power and more frequent invasions of privacy by law enforcement agencies. It would court these intrusions without providing greater security against violent crime. Nor would it be particularly advantageous for minorities and women.
The immediate consequence of strict gun control legislation would be to give the military and police a monopoly on arms and the power to determine which civilians may possess them. This would harm the interests of political and racial minorities, as well as women, for two reasons. First, such groups are subject to unusually high rates of violence in spite of the law enforcement efforts of the police. Although studies such as the Eisenhower Commission Firearms Task Force Report have claimed that armed civilian self-defense is ineffective against criminals, contrary evidence exists for believing that arming women and shopkeepers, for example, can dramatically reduce the incidence of rape and armed robbery. Second, the military and police sometimes will fully fail to provide protection to unpopular groups against politically or racially motivated violence. The salient illustration there is the behavior of southern state and local law enforcement officials during the height of the civil rights movement. Had blacks and civil rights workers not been armed, there might have been far greater bloodshed. In fact, it seems that it was the intended victims' ability to defend themselves against the Ku Klux Klan and others that oftentimes provoked the police into doing their job.
Advocates of gun control assume as self-evident that restrictions on, or prohibition of, guns (especially hand guns) will reduce violent crime. There appears no evidence to support this belief. On the contrary, a 1975 study done at the University of Wisconsin concluded that gun control laws have no individual or collective effect in reducing the rate of violent crime. But in addition to being ineffective against crime, effective enforcement of gun control laws would require giving police far more sweeping powers to search and otherwise invade the privacy of the citizenry. Worse, this would doubtlessly result in the arrest and imprisonment of many otherwise law-abiding people.
An Armed Militia
“Restoring the Balance: the Second Amendment Revisited.” Fordham Urban Law Journal 5 (1976–1977): 30–52.
Current efforts to limit possession of firearms to the organized militia and the theories arguing such constraint do not stand the test of constitutional theory. We can establish this by reviewing and explaining the background of the Second Amendment of the U.S. Constitution from its legislative history as well as from the common law and colonial development of the right to bear arms.
The Second Amendment reads as follows: “A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This amendment guarantees the twin goals of both individual and collective defense from violence and aggression. The intent of the framers of the Second Amendment was never to deprive private citizens of defensive arms, which alone might allow them to rebel against a tyrannous government.
State disarmament of citizens frequently served to enable one social or economic class to suppress another, as witness Charles II's disarming of Protestant subjects in England. The common law tradition, as Blackstone's Commentaries on the Laws of England articulates it, favored the citizen's right to possess and carry arms for both collective defense and individual self-defense. The Founding Fathers had learned a painful lesson in how entrenched states may assault the liberty of disarmed citizens during the Revolutionary War. The British Governor of Massachusetts Bay Colony, General Gage, sought to hamstring armed protest and the formation of the rebel's citizen militia by his attempts to disarm the colonists and confiscate their magazines of arms. Chief Justice Earl Warren has noted how much the Revolutionary War was a protest against government standing armies and was largely fought by a civilian army, the militia.
The legislative history of the Second Amendment reinforces how the constitutional framers were anxious to preserve a civilian, “unorganized militia” in contrast to the federally controlled “organized militia.” In an effort to prevent any usurping federal military power independent and superior to the civil power and rights of the people, the decentralized people's militia expressed a check against government. Furthermore, if either federal or state government invaded private rights, The Federalist No. 28 argued for the deterrent of an armed people. Private individuals were entitled to bear arms even apart from membership in the militia.
In this light, the Supreme Court infringed on the Second Amendment rights in United States v. Miller (1939). It ruled that citizens were not constitutionally guaranteed the right to possess or transport a sawed-off shotgun or other arms prohibited by the National Firearms Act of 1934. The Court failed to discern that the right to bear arms is a civil right, a private individual right of citizens, and not primarily of soldiers.
Any type of gun control legislation appears to violate the individual's rights under the Second as well as the Ninth Amendment, which allows the people to retain all rights not explicitly enumerated in the Constitution.
The Right to Die
“Compulsory Lifesaving Treatment for the Competent Adult.” Fordham Law Review 44 (October 1975): 1–36.
Can a competent but unwilling adult be required to undergo lifesaving medical treatment by court or other legal rulings? In the face of claims to autonomy, bodily self-determination, privacy, or free religious exercise, does the law recognize a patient's right to forego medical intervention?
This medical, legal, and ethical problem is complex. Various court decisions have judged this issue differently. In some cases courts, deferring to rights implicit in the American concept of personal liberty, have championed the patient's choice. In other cases, courts have ruled that various governmental and private interests are sufficiently compelling to overbalance the patient's choice.
The relevant and fundamental patient's rights, all concomitants of personal liberty, include the right to determine what shall be done with one's body, the right to acquiesce in imminent and inevitable death, and the right of free exercise of religion. A patient's autonomy and choice has been subordinated on the basis of state interests in preventing suicide, in protecting incompetents, in protecting the medical profession, in protecting minor children, and in protecting public health.
Without dealing with the moral dilemma of whether the patient's choice to forego treatment is ethically defensible, one can discover what the law is and elucidate its trends. Several conclusions are evident but difficult to reconcile.
“Is Pornography Good for You?” Southwestern Journal of Philosophy 7 (1976): 95–118.
Can censorship harm the individual by infringing on autonomy? The thesis proposed is that there should be no statutory restriction on pornographic materials. Pornography may be good for you, but censorship never is.
Censorship may be defined as “any action which seeks to control or exclude from consciousness those ideas and/or feelings considered to be intolerable to the censor, or which the censor judges intolerable for the censee.” Censorship may be conscious or unconscious, its controls administered autonomously (by the person himself) or heteronomously (by others). Only heteronomously imposed censorship can be a matter of concern in formulating public policy.
Leading legal opinions and current public debates confuse obscenity and pornography. Pornography may or may not be obscene; what is essential to pornography is that it be exclusively or primarily sexual in content and effect. Obscenity, by contrast, may or may not be pornographic; what is essential is that it be filthy, grotesque, repulsive to ideals or principles, or to generally accepted notions of what is appropriate. Pornography, obscene or not, ought not be subject to censorship as a matter of public policy.
A variety of considerations support the view that censorship is not 'good for you.' The present law is ambiguous; sometimes it is unenforceable, or sometimes enforced inconsistently and selectively. The enforcement power itself is liable to abuse and corruption.
The distinction between illegality and immorality can support the view that the immorality of any conduct is not an adequate reason to have legal or criminal sanctions against it. Censorship threatens and harms individual rights and minority interests. Further, the belief that pornography is socially harmful is not well-founded. Modern society need not uncritically accept dogmas of the past.
Moreover, censorship is at least an impediment to morality if it is not itself immoral: it infringes on free choice and autonomy, the preconditions for morality.
In arguing for the positive value of pornography, one can adduce its potential to be cathartic, instructive, and informative. Moreover, it can be an art form and a way of knowing. Its explicitness can reveal “the tragic, demonic element in human sexuality.” Although a preoccupation with pornography—the censor's as well as the reader's—can indicate that sexuality is not well-integrated into the total personality, that evil does not belong to pornography per se.
Ideology and Justice
“Cold War Justice: The Supreme Court and the Rosenbergs.” American Historical Review 82 (1977): 805–842.
In the hot summer of 1953, Julius and Ethel Rosenberg were executed for conspiring to steal American atomic bomb secrets and to commit espionage for the Soviet Union. Regardless of their guilt or innocence, whether they were “archtraitors” or “martyred saints,” did they receive the full measure of American justice? How did the American legal institutions, especially the Supreme Court, respond to “the most politically sensitive litigation of the Cold War era”?
Felix Frankfurter observed, in a 1956 letter to Justice John M. Harlan: “The merits aside, the manner in which the Court disposed of that [the Rosenberg case], is one of the least edifying episodes of its modern history.” The evidence for and against the Rosenbergs may be variously interpreted, but a key concern should be to analyze how the Court dealt with the case, and how the events of the Cold War and “McCarthyism” might have influenced the Court's decisions. Seven times the case was brought before the Supreme Court, and seven times it failed to get a thorough hearing.
The Rosenberg case raises the issue: to what extent might Cold War partisanship have affected the case's outcome or strained due process and civil liberties? The intertwining of domestic and international events around the case and the actual execution of the Rosenbergs make for somber and fascinating human drama and legal questions.
Many of the questions raised about the Rosenberg case are based on the new information coming from the papers of Circuit Judge Jerome Frank, Justices Frankfurter and Burton, and the material the FBI released under the Freedom of Information Act. An ironical conjecture might guess that had the Rosenbergs received a stay of execution, the Court of Earl Warren—the court famed for its Brown decision and civil liberties cases—might have overturned the death sentences. By the time of the Warren Court, the Cold War had toned down somewhat, and resolutions censuring McCarthy had begun circulating in the Senate. A matter deserving further exploration is that the proponent of civil liberties, William O. Douglas, seemed hard-shelled about the case, except on one occasion when his bluff was called.
What is clear is that to the disinterested observer of the 1970s, the Rosenberg case was not a cut and dried vindication of American equal justice.