106 Chapter 4Chapter 4 || Civil LibertiesCivil Libertiesfreedom of speech, it is obvious that some speech cannot be permitted. The classic
example is falsely yelling “fire!” in a crowded theater. Therefore, the courts must
interpret the law to draw the line between protected speech and impermissible
speech.
The same applies to other civil liberties, such as the establishment of religion,
freedom of the press, freedom from illegal searches, or other due process rights.
For example, the First Amendment prohibits the government from establishing an
official religion, which the Court has carefully interpreted over the years to avoid
“excessive entanglement” between any religion and the government. On these
grounds, government-sponsored prayer in public schools has been banned since
the early 1960s. But sometimes it is difficult to draw the line between acceptable
and impermissible government involvement concerning religion in schools. One
such ruling allowed taxpayer subsidies to fund parochial schools for buying books
but not maps. (This odd hairsplitting led the late senator Daniel Patrick Moynihan
to quip, “What about atlases?”^13 ) Another difficult issue is the Fourth Amendment
prohibition against “unreasonable searches and seizures” and the role of drug-
sniffing dogs. Here the line drawing involves deciding whether a sniff is a search and,
if so, under what circumstances it is reasonable (see the Take a Stand feature in this
chapter). Search and seizure cases also involve balancing interests: in this case, the
individual freedoms of the target of police action and the broader interests in public
order and security.The Origins of Civil Liberties
Courts define the boundaries of civil liberties, but the other branches of government
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 defined: Should government be limited by an
explicit statement of individual liberties? Would these limitations apply to the state
governments or just the national government? How should these freedoms evolve as
our society changes?Origins of the Bill of Rights
The original Constitution provided only limited protection of civil liberties: it
guaranteed habeas corpus rights (a protection against illegal incarceration) and
prohibited bills of attainder (legislation punishing someone for a crime without
the benefit of a trial) and ex post facto laws (laws that retroactively change the legal
consequences of some behavior). Delegates to the Constitutional Convention made a
few attempts to include a broader statement of civil liberties, including one by George
Mason and Elbridge Gerry five days before the 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 to protect the freedom of the press, but that too was
rejected.^14
Mason and Gerry opposed ratification of the Constitution, partly because it did not
include a bill of rights, and many Antifederalists echoed this view. In a letter to James
Madison, Thomas Jefferson predicted that four states would withhold ratification
until a bill of rights was added.^15 Some states ratified the Constitution but urgedEXPLAIN WHY THE BILL OF
RIGHTS WAS ADDED TO THE
CONSTITUTION AND HOW IT
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