The Supreme Court is Central to Protecting Civil Liberties

The Supreme Court is Central to Protecting Civil Liberties 

James R. Stoner, Jr., Louisiana State University 

The Supreme Court plays an essential role in securing civil liberties and civil rights. This is not because the justices are oracles with special insight into the meaning of the Constitution, but because the protection of basic rights and liberties is the specific function of courts, and the Supreme Court is, at least when the Bill of Rights is in question, the court of last appeal. The guarantee to every person of the right to have one’s conflicts with the government or with other persons settled according to law by “having one’s day in court” is central to the rule of law. The technical term for this is due process, guaranteed in relation to the federal government by the Fifth Amendment and in relation to the states by the Fourteenth. Textbooks say that legislatures make laws and executives enforce them, but executive action is only temporary until one’s case comes to court, and courts will only recognize statutes and actions that are within the constitutional power of the appropriate branch. Courts work slowly, and we take their existence for granted, but that they stand between the government and the people is a great civilizational achievement.

This work of courts is older than the Constitution of the United States. What the American Founders understood by the phrase “judicial power” includes the tradition of English common law that they proudly claimed as their own; the roots of due process can be traced back at least as far as Magna Carta in 1215. Common law is unwritten law, based in custom and tradition. Since justice requires treating similar cases similarly, common law respects the rule of precedent, so recorded judicial opinions came to provide written guidance as to what law requires, though unwritten law might also be declared or changed by statute. While judges administer trials and explain legal issues, common law juries are charged with deciding the facts in a case and thus with applying the law to the facts. Many of the provisions of our Bill of Rights have their source in common law: for example, the freedom of the press, the requirement of search warrants, the privilege against self-incrimination, the right to just compensation when government exercises its eminent domain, the prohibition of cruel and unusual punishment, and, of course, the right to trial by jury and to due process itself.

As society changes and new situations arise, the operation of precedent cannot be automatic. Courts have to interpret how to adhere to the principles of the law and to the Constitution in the particular case at hand. Since the United States government is republican, not monarchical, as Great Britain’s was, the meaning of freedom of the press, for example, was given a broader reach here. That principle did not merely forbid prior restraint (i.e., censorship) but permitted extensive criticism of government officials. Since the United States government is a federal system, courts have to address the conflicts that can emerge between state and federal law when rights are at issue. As women acquired equal property rights with men through statute and gained the right to vote through constitutional amendment, their right to serve on juries was mandated by courts. As electronic and digital media have been developed, the courts have had to decide how First Amendment freedoms apply to them. Moreover, when modern developments—such as twentieth-century techniques of policing—enhanced government power, the courts invoked the protections of the Bill of Rights on behalf of individuals accused of crimes. As economic changes led to more extensive government regulation, the courts have been called on to better protect property rights. Many commentators and even some judges have believed that social change licenses judges’ invention of new rights, especially in matters involving sexual morality, but the Supreme Court appears to be returning to the view that new rights can only be created by legislative bodies or by the people in their constitutive capacity. Judges have enough to do vindicating ancient or well-established constitutional rights against the threats posed by change and innovation, threats that sometimes arise even as a result of good-faith efforts by the other branches to address social problems.

American constitutionalism vests the ultimate protection of rights in the jurisdiction of courts—and hence gives a special role to the Supreme Court, the court of last appeal—because we value the integrity of the individual, that is, of every individual, all of whom are entitled, in the words of the Fourteenth Amendment, to the “equal protection of the laws.” We suppose that individuals are free and able to think for themselves, to discern and pursue their own interests, and to associate in families and communities according to their own choices, under the guidance and security of judicially applied law—not subject to the arbitrary authority of rulers, even those who have been elected by popular vote. Ours is a democratic republic, and we elect government to “insure domestic tranquility, provide for the common defense, [and] promote the general welfare,” but we rely on our courts—whose judges are appointed by elected officials but, at the federal level, serve “on good behavior”—to establish justice and thus secure the blessings of civil liberty.