92 CHAPTER 4|CIVIL LIBERTIES
HOW CAN CONFLICTS BE RESOLVED between civil liberties and other legitimate interests, such as public safety and public health?
Sometimes freedom is forced to give way. Courts have upheld bans on the religious practice of snake handling and laws requiring the
Amish to display refl ective triangles when driving slow-moving buggies on public roads, despite religious objections to doing so.
Courts defi ne the boundaries of civil liberties, but the other branches of gov-
ernment and the public often get involved as well. The earliest debates during the
American Founding illustrate the broad public involvement concerning the basic
questions of how our civil liberties would be defi ned: Should government be lim-
ited by an explicit statement of individual liberties? Would these limitations apply
to the state governments or just the national government? How should these free-
doms evolve as our society changes? As we will see in this section, interpretations
of these constitutional protections have changed over time.Origins of the Bill of Rights
Originally, the Constitution provided very limited protection of civil liberties: (1) a
guarantee of habeas corpus rights (a protection against illegal incarceration), and
(2) a prohibition of bills of attainder (legislation punishing someone for a crime
without the benefi t of a trial) and ex post facto laws (laws that retroactively change
the legal consequences of some behavior). There were a few attempts to include
a broader statement of civil liberties, including one proposed by George Mason
and Elbridge Gerry fi ve days before the Constitutional Convention adjourned, but
their motion to appoint a committee to draft a bill of rights was rejected. Charles
Pinckney and Gerry also tried to add a provision protecting the freedom of the
press, but that too was rejected.^6
Mason and Gerry opposed ratifi cation of the Constitution partly because it
did not include a bill of rights, and many Antifederalists echoed this view. Some
states ratifi ed the Constitution but urged Congress to draft specifi c protections for
individuals’ and states’ rights from federal action. (They believed that protection