Encyclopedia of American Civil Liberties

(Note: Introduction is taken from uncorrected proofs. Changes may be made prior to publication.)

The story of America is in part the story of Civil Liberties. The early settlers of Massachusetts, the Plymouth separatists—remembered as the Pilgrims—and the Massachusetts Bay Puritans came to America, seeking freedom of religious worship. This was a civil liberty they sought for themselves, although not for others in their community. But by the end of the 1640s, Rhode Island offered substantial religious toleration for people of all faiths while Maryland offered toleration for most Christians. New Amsterdam would later develop a regime of toleration while Pennsylvania and South Carolina would begin as colonies open to people of all faiths. While Europeans continued to slaughter each other over matters of faith, Americans, even in the most rigid colonies, developed a sense of toleration. This was the first step towards a culture of liberties and civil liberties. Instances of religious persecution—hanging of Quakers in Boston or witches in Salem—proved to be lessons to other Americans on why civil liberties mattered.

Political struggles in the colonies helped Americans develop a growing sense of liberty. The trial of the printer John Peter Zenger in 1736 for his attacks on the governor of New York did not alter the law of libel in England or America. But the case did highlight the importance of due process, the grand jury indictment, and an impartial jury to the cause of liberty. Zenger had clearly embarrassed the governor and his administration, and under the law of the time that amounted to seditious libel. However, the grand jury refused to indict the printer, in part because what he said was substantially true. The prosecutor charged Zenger by information, bypassing the grand jury and in the process teaching Americans the importance of the grand jury as a buffer between the state and the individual. The prosecutor then tried to stack the jury while the judge disbarred Zenger's lawyers. Good lawyering by an appointed counsel, a clever strategy by Zenger's supporters, and an impartial jury ultimately led to an acquittal. The lesson for the colonists was that due process protections were central to a free people and civil liberties were necessary to protect the governed from the government.

The Revolutionary era brought new civil liberties concerns. In 1776, Americans complained that the King denied them due process and fair trials. During the Revolution Americans worried about freedom the press, bills of attainder, and the problems of creating a free society without spinning into anarchy; and creating a stable society that does avoided become a tyranny. Constitutional government, a bill of rights, and an expanded suffrage were designed to prevent both evils by creating stability and liberty.

Since the adoption of the Bill of Rights in 1791, Americans have often debated the meaning of civil liberties. In 1790s Congress passed the Fugitive Slave Law of 1793 and the Sedition Act of 1798, both of which seemed to violate provisions of the Bill of Rights. The Supreme Court did not consider the constitutionality of the first law until 1842 and never considered the constitutionality of the Sedition Act. By 1812, however, the political process and accepted political and social norms eliminated seditious libel from the American landscape, until Congress revived it during World War I. The antebellum crisis led to debates over abolitionist speech and petitions to Congress. Slavery itself was, of course, the worst violation of civil liberties in American history. But slaveowners argued that their civil liberties prevented the national government from taking their property—freeing their slaves—without just compensation. The Civil War raised new questions about free speech, the suspension of habeas corpus, and the right to free slaves. The aftermath of the War led to loyalty oaths, the suspension of habeas corpus in parts of the South, and three new Amendments that began to change the nature of federalism by applying the Bill of Rights and other federal protection to the states. Immigration, labor unions, anarchism, new political ideologies, fears of pornography, all raised new civil liberties issues in the last part of the Nineteenth Century. World War I led to a new Sedition Act and for the first time the Supreme Court was forced to define the meaning of speech.

Throughout the Twentieth Century, the Supreme Court was at the center of the meaning of rights. The Courts have protected civil liberties at times, and at others have been less protective. Most importantly, the Courts have continuously expanded and reinterpreted the meaning of civil liberties. So too has popular culture. In the early Nineteenth Century it seemed reasonable, even within the context of freedom of speech and religion, to punish blasphemy. Today such an idea would be dismissed by almost all Americans. Early movies were often quite sexually suggestive. By the 1940s they were almost prudish. Today society tolerates almost anything in a movie, but we properly focus on who can see a movie—protecting children from sexually explicit content—rather than on the content itself.

The rights of the accused also changed over time. Since 1791, the Eighth Amendment has banned cruel and unusual punishment, and most states have had similar prohibitions in their constitutions. But until the 1960s, many police department routinely interrogated prisoners with threats, violence, sleep deprivation, and other tactics commonly called "the third degree." When the U.S. Supreme Court stopped such practices in the mid-1960s many Americans objected. They feared that the police would be unable to do their job. Two generations later, even police departments find that protecting the rights of the accused makes policing easier and is less likely to lead to false confession. Most Americans can recite their "Miranda" rights by heart, having heard them in movies and on television over and over again. Americans know their rights and understand the value of these rights.

At the beginning of the twenty-first century, civil liberties are at the center of political discourse. The Wars in Afghanistan, in Iraq and on Terrorism have raised new questions about civil liberties in an age of what may be perpetual war or at least perpetual alerts for terrorism. American have to ponder how Eighteenth Century ideas fit into a new technological age. The Bill of Rights requires that the government may not conduct a search without a warrant, issued by a judge on the basis of probable cause. The sixth amendment requires a speedy trial. Can such requirements work in an age of high tech terror? Can our democracy survive if such requirements are ignored?

With these issues in mind, Routledge publishes the Encyclopedia of American Civil Liberties. We have designed this work to provide a comprehensive access to the key historical and contemporary issues surrounding civil liberties in the United States. We believe that no reference work could be more timely or more vital to the nation than one on Civil Liberties. We hope the Encyclopedia will help students, scholars, the general public, lawmakers, and government officials better understand the complexity of civil liberties and their historic role in the development of the United States.

Coverage

In addition to freedom of speech, press, religion, assembly, and petition, the Encyclopedia covers topics such as privacy, property rights, the rights of the accused, and national security. Its multidisciplinary approach and breadth of scope will make it an essential library reference for lawyers, scholars, students, and general readers. The entries discuss a wide range of topics, including:

the Constitution, the Bill of Rights, and the history of civil liberties

cases, trials, and important court decisions

associations, societies, organizations, and government bodies

literature, entertainment, media, and art

slavery, crime, and war

religion, censorship, and privacy

people, places, and events

The articles are grouped into thematic entries, as follows:

Biography
Biographies cover such pioneers as Thomas Jefferson, the master stylist of American history, to Margaret Sanger, the founder of Planned Parenthood. The biography entries in this Encyclopedia are focused on the social, political, and other circumstances relevant to the individual's work.

Cases
Case entries provide a clear and engaging narrative which include the background on the case, the identification of key players, and an explanation of how the case arose. The main text of the entry should discuss the analysis, doctrine, and majority opinion vote. Case entries conclude by explaining the long-term impact of the decision, as well as the importance of the case in relation to civil liberties.

Historical Overview
Entries focus on the origin of the subject in American history and its relationship to civil liberties. The discussion includes influences (religious, philosophical, cultural, and so forth), major players and events, and long-term impact on civil liberties.

Legislation, Legislative Action, Statutes, and Acts
Entries on legislation detail the history, enactment and current status of the law, statute, or act. This also includes precedents, actions, and events that led to its formation, cases involved in its history, and consequences or lasting impact on civil liberties.

Organizations and Government Bodies
Organizations are included that have had an impact on civil liberties in the United States. Each entry includes the organization or government body's history, key members (including founders) throughout its history, and legal implications of its impact on civil liberties.

Themes, Issues, Concepts, and Events
The focus of these entries is on the relationship between the subject and civil liberties. In addition to the basic discussion of the subject, each entry may include the following issues: history, origins, and development; legal, academic, or theoretical debates; perspectives from different fields or schools of thought; or any unresolved issues concerning the subject.

How to Use This Book

The Encyclopedia of American Civil Liberties contains 1423 entries of 250 to 6000 words in length. They range from biographies to thematic interpretations and analytical discussions of timely topics. As far as possible, the Encyclopedia covers the history and politics of Civil Liberties from the time of the Founding Fathers to the present, providing the reader with a reliable, up-to-date view of the current state of scholarship on Civil Liberties and the meaning of freedom in American life.

Perhaps the most significant feature of the encyclopedia is the easily accessible A to Z format. Cross-referencing in the form of See Alsos at the end of most entries refer the reader to other related entries. Each article contains a list of References and Further Reading, including sources used by the writer and editor as well as additional items that may be of interest to the reader. Most books or articles cited are easily available through interlibrary loan services in libraries. Entries may also include a segment entitled Cases and Statutes Cited, which lists the citations of cases and statutes referred to in the article. Blind Entries direct readers to essays listed under another title. For example, the blind entry "Death Penalty" refers the reader to the article titled "Capital Punishment." A thorough, analytical index complements the accessibility of the entries, easing the reader's entry into the wealth of information provided. A thematic list of entries is also included to assist readers with research in particular areas.

Four hundred and seventy authors have contributed the entries to this Encyclopedia. Contributors represent a variety of fields, among them criminal law, Constitutional law, law and religion, legal history, law and race, and reproductive rights. The expertise of a wide-ranging and diverse group of contributors will provide the reader with a broad-based overview of issues, events, and theories of the developing world.

Acknowledgements

This Encyclopedia would not have been possible without the cooperation of hundreds of scholars who have written for it. My co-editors—Jack Chin, Dave Douglas, Rod Smolla, Mel Urofsky, and Mary Volcansek—have worked enormously hard in making this project happen. They have made my job as editor-in-chief a pleasure because they were such a pleasure to work with. The project began under the editorship of Sylvia Miller. I am especially grateful to Jamie Ehrlich, who has managed the project for the last year, Mark Georgiev, Mark O'Malley, Kate Aker, and Marie-Claire Antoine for their efforts. The creation of a reference work is a team effort, and I have been blessed with a wonderful team of scholars and publishers. I thank all of them not only for the pleasure of working with together, but also for their dedication to helping all Americans learn more about our constitutional rights and our civil liberties.

Paul Finkelman