p. 103 Table 4.1:The Nationalization of the Bill of Rights
p. 107 You Are the Judge:The Case of Animal Sacrifices
p. 114 You Are the Judge:The Case of the Drive-in Theater
p. 118 You Are the Judge:The Case of the Nazis’ March in Skokie
p. 120 Table 4.2:The Constitution and the Stages of the Criminal Justice System
p. 122 You Are the Judge:The Case of Ms. Montoya
p. 124You Are the Judge: The Case of the Dirty Old Man
p. 130 Table 4.3: Supreme Court’s Standards for Classifications Under the Equal Protection Clause of the Fourteenth Amendment
p. 132 Table 4.4: Toward Racial Equality: Milestones in the Era of Slavery
p. 133 Table 4.5:Toward Racial Equality: Milestones in the Era of Reconstruction and Resegregation
p. 136 Table 4.6:Toward Racial Equality: Milestones in the Era of Civil Rights
p. 143 Making a Difference: Sally Reed
p. 144 Table 4.7:Toward Gender Equality: Public Policy Milestones
p. 147 You Are the Judge:Is Male-Only Draft Registration Gender Discrimination?
p. 152 Issues of the Times: Affirmative Action
p. 155 How You Can Make A Difference: Influencing Affirmative Action
p. 156You Are the Judge: The Case of the Santa Clara Dispatcher
p. 161 Real People on the Job: Dick Kurtenbach
p. 162 Get Connected
p. 162 Internet Resources
p. 163 For Further Reading
After studying this chapter, students should be able to:
Examine how decisions of the Supreme Court have extended specific provisions of the Bill of Rights to the states as part of the incorporation doctrine.
Identify and explain how various “rights” established in the Bill of Rights sometimes conflict.
Explain why the Supreme Court will usually not permit prior restraint on speech and press.
Explain how specific provisions of the Bill of Rights have been used to extend basic rights to defendants in criminal trials.
Understand how civil rights have been used to extend more equality to groups that historically have been subject to discrimination.
Explain how the Fourteenth Amendment guarantee of “equal protection of the laws” has been applied to the idea of equality.
Trace the attempts of southern states to deny African-Americans the right to vote even after the passage of the Fifteenth Amendment.
Show the significance of the Civil Rights Act of 1964 and explain why efforts for civil rights legislation were finally successful in the mid-1960s.
Identify the major public policy milestones in the movement toward gender equality.
Identify new groups who are now fighting for equality, and discuss their likelihood of success.
Determine how civil rights laws increase the scope and power of government.
INTRODUCTION Civil liberties are individual legal and constitutional protections against the government. Although Americans’ civil liberties are established in the Bill of Rights, the courts determine what the Constitution actually means through the cases they decide. Disputes about civil liberties are frequent because the issues involved are complex and divisive. Civil rights are policies that extend basic rights to groups historically subject to discrimination. Philosophically, the struggle for equality involves defining the term; constitutionally, it involves interpreting laws; politically, it often involves power. This chapter examines what the Constitution says about equality and how civil liberties and civil rights to equality have been interpreted.
Throughout this chapter, students are introduced to the nuances of judicial decision making through special features called You Are the Judge. Students are asked to try to decide the outcome of these cases before reading about the actual court decisions.
THE BILL OF RIGHTS—THEN AND NOW The Bill of Rights is fundamental to Americans’ freedom. All of the state constitutions had bills of rights by the time of the 1787 convention, and the issue of adding a Bill of Rights to the proposed national constitution had become a condition of ratification. The Bill of Rights was passed as a group by the First Congress in 1789; the first ten amendments were ratified and became part of the Constitution in 1791.
Political scientists have discovered that people are advocates of rights in theory, but their support wavers when it comes time to put those rights into practice. Cases become particularly difficult when liberties are in conflict—such as free press versus a fair trial or free speech versus public order—or where the facts and interpretations are subtle and ambiguous.
The Bill of Rights was written to restrict the powers of the new central government. In Barronv.Baltimore (1833), the Supreme Court ruled that the Bill of Rights restrained only the national government and not states and cities. It was not until 1925 that the Court relied on the Fourteenth Amendment to find that a state government must respect some First Amendment rights (Gitlowv.New York). In Gitlow, the Court announced that freedoms of speech and press “were fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.”
The Supreme Court gradually applied most of the Bill of Rights to the states, particularly during the era of Chief Justice Earl Warren in the 1960s through the use of the incorporation doctrine. At the present time, only the Second, Third, and Seventh Amendments, the grand jury requirement of the Fifth Amendment, and the prohibition against excessive fines and bail with the Eighth Amendment have not been applied specifically to the states.
FREEDOM OF RELIGION The First Amendment makes two basic statements about religion and government, commonly referred to as the establishment clause and the free exercise clause. Sometimes these freedoms conflict, but cases involving these clauses usually raise different kinds of conflicts.
Some nations, like Great Britain, have an established church that is officially supported by the government. A few American colonies had official churches, but the religious persecutions that incited many colonists to move to America discouraged any desire for the First Congress to establish a national church in the United States. Debate still continues over what else the First Congress may have intended for the establishment clause. Some people believe that the establishment clause meant only that the government could not favor one religion over another. Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and state that forbade any support for religion at all.
Debate has been especially intense over questions of aid to church-related schools and prayers or Bible reading in the public schools. School prayer is possibly the most controversial religious issue. In 1962 and 1963, the Court ruled that voluntary recitations of prayers or Bible passages, when done as part of classroom exercises in public schools, violated the establishment clause (Engelv.Vitale and School District of Abington Township, Pennsylvaniav.Schempp). A majority of the public has never favored the Court’s decisions on school prayer. Some religious groups pushed for a constitutional amendment permitting school prayer, and many school districts simply ignored the decision. In Employment Divisionv. Smith (1990) the Supreme Court ruled that states can prohibit certain religious practices, but not religion itself.
There is a fine line between aid to church-related schools that is permissible and aid that is not. In 1971, the Supreme Court declared that aid to church-related schools must have a secular legislative purpose, cannot be used to advance or inhibit religion, and should avoid excessive government “entanglement” with religion (Lemonv.Kurtzman).
Conservative religious groups have had an impact on the political agenda. They devoted much of their time and energies in recent years to the issues of school prayer and creation science; and while they lost some battles (such as the battle over teaching creation science in the public schools), they have won others (for example, the Court decision that religious scenes could be set up on public property). School prayer is perhaps the most controversial religious issue. In Engel v. Vitale and School District of Abington Township, Pennsylvania v. Schempp the justices observed that “the place of religion in our society is an exalted one,…but in the relationship between man and religion, the State is firmly committed to a position of neutrality.” It is not unconstitutional, of course, to pray in public schools. Students may pray silently as much as they wish. What the Constitution forbids is the sponsorship or encouragement of prayer, directly or indirectly, by public school authorities.
The guarantee of free exercise of religion is also more complicated than it appears at first glance. The free exercise of religious beliefs sometimes clashes with society’s other values and laws, as occurred when the Amish refused to send their children to public schools. The Supreme Court has consistently maintained that people have an absolute right to believe what they want, but the courts have been more cautious about the right to practice a belief.
FREEDOM OF EXPRESSION The courts have frequently wrestled with the question of whether freedom of expression (like freedom of conscience) is an absolute. The courts have often ruled that there are instances when speech needs to be controlled, especially when the First Amendment conflicts with other rights. In their attempts to draw the line separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values like public order, national security, and the right to a fair trial.
The Court has generally struck down prior restraint of speech and press (censorship that prevents publication), although the writer or speaker could be punished for violating a law or someone’s rights after publication (Nearv.Minnesota, 1931). Crises such as war often bring government efforts to enforce censorship. In Schenckv. United States (1919), Justice Oliver Wendell Holmes declared that government can limit speech if it provokes a clear and present danger of “substantive evils.” Free speech advocates did little to stem the relentless persecution of McCarthyism during the “cold war” of the 1950s, when Senator Joseph McCarthy’s unproven accusations that many public officials were Communists created an atmosphere in which the courts placed broad restrictions on freedom of expression. By the 1960s, the political climate had changed, and courts today are very supportive of the right to protest, pass out leaflets, or gather signatures on petitions (as long as it is done in public places).
The Bill of Rights is also a source of potential conflicts between different types of freedoms. The Constitution clearly meant to guarantee the right to a fair trial as well as the right to a free press, but a trial may not be fair if pretrial press coverage makes it impossible to select an impartial jury. Likewise, journalists seek full freedom to cover all trials (they argue that the public has a right to know), but they sometimes defend their right to keep some of their own files secret in order to protect a confidential source.
Efforts to define obscenity have perplexed the courts for years. Although the Supreme Court has held that “obscenity is not within the area of constitutionally protected speech or press” (Rothv.United States, 1957), it has proven difficult to determine what is legally obscene. The Court tried to clarify its definition of obscenity in Miller v. California, but what obscenity is remains ambiguous.
Libel and slander also raise freedom of expression issues that involve competing values. If public debate is not free, there can be no democracy. Conversely, some reputations will be unfairly damaged in the process if there are not limitations. Libel (the publication of statements known to be false that tend to damage a person’s reputation) and slander (spoken defamation) are not protected by the First Amendment, but the Court has held that statements about public figures are libelous only if made with malice and reckless disregard for the truth (New York Timesv.Sullivan, 1964). The right to criticize the government (which the Supreme Court termed “the central meaning of the First Amendment”) is not libel or slander.
The courts have also had to decide what kinds of activities constitute speech (or press) within the meaning of the First Amendment. Certain forms of nonverbal communication (like picketing) are considered symbolic speech and are protected under the First Amendment. Other forms of expression are considered to be action and are not protected. Commercial speech (such as advertising) is more restricted than are expressions of opinion on religious, political, or other matters. Similarly, radio and television stations are subject to more restrictions than the print media (justified by the fact that only a limited number of broadcast frequencies are available).
There are two facets to freedom of assembly. The right to assemble involves the right to gather together in order to make a statement, while the right to associate is the freedom to associate with people who share a common interest. The Supreme Court has generally upheld the right of any group—no matter how controversial or offensive—to peaceably assemble on public property. The Supreme Court protected the right to assemble peaceably in the 1958 case NAACP v.Alabama. The balance between freedom and order is tested when protest verges on harassment.
DEFENDANTS’ RIGHTS The First Amendment guarantees the freedoms of religion, speech, press, and assembly. Most of the remaining rights in the Bill of Rights concern the rights of people accused of crimes. These rights were originally intended to protect the accused in political arrests and trials. Today, the protections in the Fourth, Fifth, Sixth, and Eighth Amendments are primarily applied in criminal justice cases. Moreover, the Supreme Court’s decisions have extended most provisions of the Bill of Rights to the states as part of the general process of incorporation.
The Bill of Rights covers every stage of the criminal justice system. The Fourth Amendment is quite specific in forbidding unreasonable searches and seizures. No court may issue a search warrant unless probable cause exists to believe that a crime has occurred or is about to occur, and warrants must describe the area to be searched and the material sought in the search. Since 1914, the courts have used the exclusionary rule to prevent illegally seized evidence from being introduced in federal courts. In 1961, the Supreme Court incorporated the exclusionary rule within the rights that restrict the states as well as the federal government (Mappv.Ohio). The Burger Court made a number of exceptions to the exclusionary rule, including the good-faith exception (United Statesv.Leon, 1984).
Under the Fifth Amendment prohibition against forced self-incrimination, suspects cannot be compelled to provide evidence that can be used against them. The burden of proof rests on the police and the prosecutors, not the defendant. Mirandav.Arizona (1966) set guidelines for police questioning of suspects, whereby suspects must be informed of their constitutional rights. The more conservative Rehnquist Court made some exceptions to the Miranda rulings, including a ruling in 1991 that a coerced confession is a “harmless error” if other evidence is sufficient for conviction (Arizonav.Fulminante).
Although the Sixth Amendment has always ensured the right to counsel in federal courts, this right was not incorporated to state courts until recently. In 1932, the Supreme Court ordered states to provide an attorney for indigent defendants accused of a capital crime (Powellv.Alabama), and in 1963, the Court extended the same right to everyone accused of a felony (Gideonv.Wainwright). The Court later ruled that a lawyer must be provided for the accused whenever imprisonment could be imposed (Argersingerv.Hamlin, 1972). The Sixth Amendment also ensures the right to a speedy trial and an impartial jury, but most cases are settled through plea bargaining rather than through trial by jury.
The Eighth Amendment forbids cruel and unusual punishment, but it does not define the phrase. Most of the constitutional debate over cruel and unusual punishment has centered on the death penalty. In Furmanv.Georgia (1972), the Court first confronted the question of whether the death penalty is inherently cruel and unusual punishment. A divided Court overturned Georgia’s death penalty law because its imposition was “freakish” and “random” in the way it was arbitrarily applied (particularly with regard to factors such as race and income). Thirty-five states passed new laws that were intended to be less arbitrary. In recent years, the Court has come down more clearly on the side of the death penalty.
THE RIGHT TO PRIVACY Today’s technologies raise key questions about ethics and the Constitution. Although the Constitution does not specifically mention a right to privacy, the Supreme Court has said that it is implied by several guarantees in the Bill of Rights. Questions involving a right to privacy have centered on such diverse issues as abortion rights, the drafting of state laws to define death, technological developments like in-vitro fertilization, and the right to die. Supporters of privacy rights argue that the Fourth Amendment was intended to protect privacy. Opponents claim that the Supreme Court was inventing protections not specified by the Constitution when it ruled on constitutionally protected “rights of privacy.”
The Supreme Court first referred to the idea that the Constitution guarantees a right to privacy in a 1965 case involving a Connecticut law that forbade contraceptives (Griswoldv.Connecticut), but the most important application of privacy rights came in the area of abortion. Americans are deeply divided on abortion: The positions of “pro-choice” and “pro-life” are irreconcilable.
Justice Harry Blackmun’s majority opinion in Roev.Wade (1973) followed the practice of medical authorities in dividing pregnancy into three equal trimesters. Roe forbade any state control of abortions during the first trimester; permitted states to allow regulated abortions to protect the mother’s health in the second trimester; and allowed the states to ban abortion during the third trimester except when the mother’s life was in danger. In 1989, a clinic in St. Louis challenged the constitutionality of a Missouri law that forbade the use of state funds or state employees to perform abortions, but the Court upheld the law in Webster v. Reproductive Health Services (1989). In 1992, the Court changed its standard for evaluating restrictions on abortion from one of “strict scrutiny” of any restraints on a “fundamental right” to one of “undue burden” that permits considerably more regulation (Planned Parenthoodv.Casey). Beginning in 1994, the Supreme Court strengthened women’s access to health clinics, while Congress passed the Freedom of Access to Clinic Entrances Act, which made it a federal crime to intimidate abortion providers or women seeking abortions.
THE STRUGGLE FOR EQUALITY The real meaning of equality is both elusive and divisive. Most Americans favor equality in the abstract, but the concrete struggle for equal rights has been our nation’s most bitter battle.
American society does not emphasize equal results or equal rewards. A belief in equal rights has often led to a belief in equality of opportunity. Today’s debates over inequality in America center on racial discrimination, gender discrimination, and discrimination based on factors such as age, disability, and sexual preference.
The delegates to the Constitutional Convention came up with a plan for government rather than guarantees of individual rights, and the word equality does not even appear in the original Constitution. The only place in which the idea of equality clearly appears in the Constitution is in the Fourteenth Amendment, which prohibits the states from denying “equal protection of the laws” to any person. It was not until the mid-twentieth century that the Fourteenth Amendment was used to assure rights for disadvantaged groups, but the equal protection clause gradually became the vehicle for more expansive constitutional interpretations.
The Court has developed three levels of judicial scrutiny (or classifications). Most classifications that are reasonable (that bear a rational relationship to some legitimate governmental purpose) are constitutional. Racial and ethnic classifications are inherently suspect: They are presumed to be invalid and are upheld only if they serve a “compelling public interest” that cannot be accomplished in some other way. Classifications based on gender fall somewhere between reasonable and inherently suspect: Gender classifications must bear a substantial relationship to an important legislative purpose.
RACE, THE CONSTITUTION, AND PUBLIC POLICY African-Americans have been the most visible minority group in the United States, and the civil rights laws that African-American groups pushed for have also benefited members of other minority groups. Three eras define African-Americans’ struggle for equality in America: the era of slavery, from the beginnings of colonization until the end of the Civil War; the era of Reconstruction and resegregation, from the end of the Civil War until 1954; and the era of civil rights, from 1954 to the present.
The delegates to the Constitutional Convention did their best to avoid facing the divergence between slavery and the principles of the Declaration of Independence. During the slavery era, any public policy of the slave states or the federal government had to accommodate the property interests of slave owners. The Union victory in the Civil War and the ratification of the Thirteenth Amendment ended slavery. After the Civil War ended, Congress imposed strict conditions on the former Confederate states before they could be readmitted to the Union. Many African-American men held state and federal offices during the ten years following the war. As soon as they regained control following Reconstruction, white Southerners imposed a code of “Jim Crow laws” that required African-Americans to use separate public facilities and school systems.
The early Republic limited suffrage primarily to property-holding white males. The Fifteenth Amendment (1870) guaranteed African-Americans the right to vote, but full implementation did not occur for another century. States used various methods to circumvent the Fifteenth Amendment, including literacy tests with grandfather clauses, white primaries, and poll taxes. During this period, segregation was legally required in the South (de jure) and sanctioned in the North (de facto). The Supreme Court provided constitutional justification for segregation in Plessyv.Ferguson (1896) when it held that segregation in public facilities was not unconstitutional as long as the facilities were substantially equal (a principle that was commonly referred to as the “separate but equal” doctrine, though subsequent decisions paid more attention to the “separate” than to the “equal” part).
Although some limited progress was made in the first half of the twentieth century, the Supreme Court decision in Brownv.Board of Education (1954) really marks the beginning of the era of civil rights. In a landmark decision, the Court held that school segregation was inherently unconstitutional because it violated the Fourteenth Amendment’s guarantee of equal protection. The modern civil rights movement began in 1955 when Rosa Parks refused to give up her seat in the front of a Montgomery, Alabama, bus (where only whites were permitted to sit). The boycott that followed her arrest is often seen as the beginning of the African-American civil rights movement. Sit-ins, marches, and civil disobedience were key strategies of the civil rights movement.
Desegregation proceeded slowly in the South, and some federal judges ordered the busing of students to achieve racially balanced schools. The Civil Rights Act of 1964 made racial discrimination illegal in hotels, motels, restaurants, and other places of public accommodation. The Act also forbade many forms of job discrimination, and Congress cut off federal aid to schools that remained segregated. The Voting Rights Act of 1965 prohibited any government from using voting procedures that denied a person the vote on the basis of race or color. Poll taxes in federal elections were prohibited by the Twenty-fourth Amendment (1964), and poll taxes in state elections were invalidated by the Supreme Court two years later (Harper v. Virginia State Board of Elections).
The civil rights laws that African-American groups pushed for have benefited members of other minority groups, such as Native Americans, Asians, and Hispanic Americans. The civil rights movement of the 1960s created a more favorable climate for Native Americans to secure guaranteed access to the polls, housing, and jobs and to reassert their treaty rights. Asian Americans suffered discrimination in education, jobs, and housing, as well as restrictions on immigration and naturalization for more than a hundred years prior to the civil rights acts of the 1960s. Discrimination was especially egregious during World War II when the U.S. government, beset by fears of a Japanese invasion of the Pacific Coast, rounded up more than 100,000 Americans of Japanese descent and herded them into encampments. These internment camps were, critics claimed, America’s concentration camps. The Supreme Court, however, in Korematsu v.United States (1944), upheld the internment as constitutional. Congress has since authorized benefits to the former internees.
WOMEN, THE CONSTITUTION, AND PUBLIC POLICY The first women’s rights activists were products of the abolitionist movement. The legal doctrine of coverture deprived married women of any identity separate from that of their husbands. Lucretia Mott and Elizabeth Cady Stanton organized a meeting at Seneca Falls, New York, to discuss women’s rights. The Seneca Falls Declaration of Sentiments and Resolutions (signed on July 19, 1848) was the beginning of the movement that would culminate in the ratification of the Nineteenth Amendment (1920), which gave women the right to vote.
The feminist movement seemed to lose momentum after winning the vote, possibly because the vote was about the only goal on which all feminists agreed. Public policy toward women continued to be dominated by protectionism (which also protected male workers from female competition), and state laws tended to reflect and reinforce the traditional family roles.
Before the advent of the contemporary feminist movement, the Supreme Court upheld virtually all cases of sex-based discrimination. In Reedv.Reed (1971), the Court ruled that any “arbitrary” sex-based classification violated the equal protection clause of the Fourteenth Amendment (marking the first time the Court applied the Fourteenth Amendment to a case involving classification by sex). The Supreme Court has now ruled on many occasions against gender discrimination in employment and business activity. Some of the litigants have been men seeking equality with women in their treatment under the law.
Some important progress was made through congressional legislation. The Civil Rights Act of 1964 banned sex discrimination in employment; in 1972, the Equal Employment Opportunity Commission (EEOC) was given the power to sue employers suspected of illegal discrimination; and Title IX of the Education Act of 1972 forbade sex discrimination in federally subsidized education programs, including athletics. The Court has remained silent so far on the issue of “comparable worth” (which refers to the fact that traditional women’s jobs often pay much less than men’s jobs that demand comparable skill).
Women now comprise 11 percent of the armed forces and compete directly with men for promotion. Statutes and regulations prohibit women from serving in combat, but the Persian Gulf War demonstrates that policy and practice are not always the same, since women piloted helicopters at the front and some were taken as prisoners of war.
Many women are now making claims for their civil rights. In the 1990s, national attention has focused on issues of sexual harassment. Most recently, the Supreme Court has issued decisions that expand the notion of sexual harassment, ruling that employers are responsible for preventing and eliminating harassment at work, and that an employee could sue for sexual harassment even without being able to show job-related harm. NEWLY ACTIVE GROUPS UNDER THE CIVIL RIGHTS UMBRELLA New activist groups now realize that policies that were enacted to protect racial minorities and women can also be applied to other groups. Aging Americans, young Americans, the disabled, and homosexuals have begun to exert their own demands for civil rights.
People in their eighties comprise the fastest growing age group in this country. It is not clear what the fate of the gray liberation movement will be as its members approach the status of a minority majority.
Young people have also suffered from inferior treatment under the law. There are obvious difficulties in organizing a “children’s rights movement,” but there have been instances of young people who were successful in asserting their rights (including a youth who “divorced” his parents).
Americans with disabilities have suffered from both direct and indirect discrimination. The Americans with Disabilities Act of 1990 requires employers and public facilities to provide “reasonable accommodations” and prohibits employment discrimination against the disabled.
Gay activists may face the toughest battle for equality. Homosexual activity is illegal in some states, and homosexuals often face prejudice in hiring, education, access to public accommodations, and housing. A substantial percentage of the American public expresses opposition to homosexuals entering many common occupations. However, gay activists have won some important victories. Seven states and more than 100 communities have passed laws protecting homosexuals against some forms of discrimination.
AFFIRMATIVE ACTION The interests of women and minorities have converged on the issue of affirmative action (policies requiring special efforts on behalf of disadvantaged groups). The goal of affirmative action is to move beyond equal opportunity toward equal results.
Some groups have claimed that affirmative action programs constitute “reverse discrimination.” In Regents of the University of Californiav.Bakke (1978), the Supreme Court rejected a plan at the University of California at Davis that set aside 16 out of a total of 100 places in the entering class for “disadvantaged groups.” The Court objected to the use of a quota of positions for particular groups, but the Court said that a university could use race or ethnic background as one component in the admissions procedure. The Court has also permitted a special training program that was intended to rectify years of past discrimination (UnitedSteelworkers of America, AFL-CIOv.Weber, 1979). However, in 1995, in Adarand Constructors v. Pena, the Court held that federal programs that classify people by race, even for an ostensibly benign purpose such as expanding opportunities for minorities, should be presumed to be unconstitutional.
Surveys find that most Americans oppose affirmative action programs, even though Americans in general support nondiscrimination in employment and education. Opposition is especially strong when people view affirmative action as reverse discrimination where less qualified individuals get hired or admitted to educational or training programs. In 1996, California voters passed Proposition 209, which banned state affirmative action programs based on race, ethnicity, or gender in public hiring, contracting, and educational admissions; Washington state passed a similar ban in 1998. A federal court of appeals placed a similar ban on universities in Texas, Oklahoma, and Mississippi.
UNDERSTANDING CIVIL LIBERTIES AND CIVIL RIGHTS The democratic and constitutional components of government can produce conflicts, but they also reinforce one another. One task that government must perform is to resolve conflicts between rights. The rights guaranteed by the First Amendment are essential to a democracy. Likewise, the rights guaranteed by the Fourth, Fifth, Sixth, and Eighth Amendments protect all Americans; but they also make it harder to punish criminals. Ultimately, it is the courts that decide what constitutional guarantees mean in practice: Although the federal courts are the branch of government least subject to majority rule, the courts enhance democracy by protecting liberty and equality from the excesses of majority rule.
Likewise, both equality and individual liberty are important democratic principles, but they may conflict with each other. For example, equality tends to favor majority rule, but equality threatens individual liberty in situations where the majority may want to deprive the minority of its rights. In general, civil liberties limit the scope of government. Yet substantial government efforts are often required to protect the expansion of rights that we have witnessed in this century.