How are your rights defined and protected under the Constitution?
The Schenck case illustrates the role played by the Supreme Court in defining constitutional rights. When the framers wrote the Constitution, they said almost nothing about the protection of individual rights and liberties from government abuses. They spelled out many things the government could do but said very little about what it could not do. That omission was rectified by the Bill of Rights, the first ten amendments to the Constitution. These amendments guarantee two types of rights: civil liberties and civil rights.
Civil liberties are basic freedoms that are considered to be the birthright of all individuals. Thomas Jefferson and his fellow authors of the Declaration of Independence would have called them natural rights, or unalienable rights. In addition to the Declaration’s “Life, Liberty and the pursuit of Happiness,” these liberties include such rights as freedom of speech, freedom of religion, and freedom of assembly. Because civil liberties are regarded as a person’s birthright, they are not something that the government can legitimately take away or infringe on.
Civil rights, on the other hand, are rights that come with being a member of society. They are not protections from government. Instead, they are guarantees by government of equal rights and fair treatment under the law. Included in this group are the right to trial by jury, the right to legal counsel, and the right to vote. These rights were among the main goals of the civil rights movement that began in the mid-1950s.
With the Bill of Rights added to the Constitution, Americans were guaranteed a broad range of civil rights and civil liberties. But these were only formal guarantees. The enforcement of these rights was another matter. In fact, James Madison worried that the Bill of Rights might serve as little more than a “parchment barrier” against government abuses. These rights and freedoms would be safeguarded only when protections were built into the structure of government. That is where the role of the Supreme Court and other federal courts has come into play.
The Bill of Rights defines rights and liberties in sweeping terms. For example, the First Amendment says, “Congress shall make no law ... abridging the freedom of speech.” Does that mean government cannot limit speech in any way?
Before free speech and other rights on paper could be safeguarded, the language of the Bill of Rights had to be interpreted and applied under actual circumstances. That task would fall to the Supreme Court under its power of judicial review, a power established in the case of Marbury v. Madison.
Marbury laid the foundation for the Supreme Court’s enforcement of the Bill of Rights, but it was only the first step. Next the Court had to decide whether the Bill of Rights applied to actions by state governments. Its first answer to this question was no. In 1833, the Court concluded in Barron v. Baltimore that the Bill of Rights applied only to actions of the federal government. As a result, the Court could do little to prevent states from infringing on basic rights and liberties.
After the Civil War, some people hoped that the Court’s limited enforcement of the Bill of Rights would change. For support, they looked to the Fourteenth Amendment, which was ratified in 1868. The amendment states,
At first, the Supreme Court interpreted the amendment very narrowly. For example, in the case of Plessy v. Ferguson (1896), the Court declared that racial segregation in the South did not violate the Fourteenth Amendment’s Equal Protection Clause as long as “separate but equal” facilities were provided for all races.
The Supreme Court’s reluctance to make the Bill of Rights binding on the states meant that very few cases involving civil rights or liberties came before it in the 1800s. As a leading rights organization later observed, “The Bill of Rights was like an engine no one knew how to start."
In the early 1900s, however, two newly formed groups began to have some success in broadening the Court’s application of the Fourteenth Amendment. These groups were the National Association for the Advancement of Colored People and the American Civil Liberties Union.
The two groups had different goals. The NAACP fought for civil rights, initially by challenging segregation laws in court. The ACLU, in contrast, focused its attention on cases involving civil liberties, such as freedom of speech. However, both groups sought to give voice to citizens who felt their rights were being violated.
In 1919, not long after the decision in the Schenck case, free speech advocates suffered another Court loss, this time in the case of Abrams v. United States.
This case involved a group of Russian-born political activists who were arrested for handing out leaflets critical of U.S. actions against Russia’s new revolutionary government. Using the same argument applied in Schenck, the Supreme Court agreed that the language in the leaflets posed a “clear and present danger” to American society.
Although the Abrams decision represented another defeat for free speech, this time Justice Holmes voiced an important dissent to the Court’s majority opinion. He said that the “clear and present danger” argument should be applied only in cases where public safety was actually at risk. Only an emergency, he wrote, “warrants making any exception to the sweeping command, ’Congress shall make no law abridging the freedom of speech.’” Holmes’s dissent would later influence the Court to take a more protective stance on free speech.
Not long after the Abrams case, the Court handed down a crucial decision that would expand the reach of the Bill of Rights. The case in question, Gitlow v. New York, involved another group of activists. This group also was arrested for handing out leaflets, this time calling for an uprising to create a socialist government. The members of the group were prosecuted and convicted in 1919 under a New York law forbidding “dangerous” speech.
Benjamin Gitlow appealed his conviction to the Supreme Court, claiming that the New York law violated his First Amendment right to free speech. Lawyers for the state argued that the Bill of Rights did not apply to state laws and that the Court did not have jurisdiction to decide the case.
The Court disagreed. In a groundbreaking decision handed down in 1925, the Court reversed its previous position and said that the Due Process Clause of the Fourteenth Amendment did extend the First Amendment to the states. This process of applying the Bill of Rights to the states through Supreme Court decisions is known as incorporation.
On the free speech issue, however, the Court held that the New York law did not violate the Constitution. Gitlow’s conviction was upheld, though he was later pardoned by the governor of New York.
The Gitlow case focused on freedom of speech. Subsequent cases have extended other rights protected in the Bill of Rights to the states. This table shows which amendments have been similarly incorporated.
Every year, thousands of people petition to appeal legal cases to the Supreme Court. Most of these cases involve a constitutional issue. They often involve a conflict over rights and liberties guaranteed in the Bill of Rights. Sometimes the conflict is between an individual or a group and the government. Other times, it is between one individual or group and another.
The role of the Supreme Court is not to retry the original case, but rather to review the legal decisions made by the lower courts. In the Gitlow case, for example, the Court considered whether Gitlow’s earlier conviction under a New York law violated the First Amendment. After reviewing the court record and hearing the arguments, the Court upheld Gitlow’s conviction.
What would have happened if the Supreme Court had sided with Gitlow? When the Supreme Court finds that a lower court’s decision is unconstitutional, it may decide to reverse the decision. Often, however, it returns the case to a lower appeals court. That lower court may alter its original decision to conform to the Court’s opinion, dismiss the case, or order a new trial.
When the Supreme Court makes a decision on an issue, that decision becomes a precedent, or example, for all courts to follow in similar cases in the future. Occasionally the Court overturns its own precedents. This happened in 1954, when the Court rejected its “separate but equal” decision on segregation that had been made in Plessy v. Ferguson. The Court found in Brown v. Board of Education that “separate educational facilities are inherently unequal.” Segregated schools were, therefore, a violation of the Fourteenth Amendment’s guarantee of equal protection of the laws.