Civil Liberties

1743–1826 ) believed, by virtue of being human beings. Government did not create property rights but was a means for providing better protection for the property rights that persons enjoyed in a state of nature. By comparison, no one has a natural right to vote or to a jury trial because voting and juries do not exist in nature. Constitutions or statutes create these liberties. Hence, the right to vote and the right to trial by jury are civil liberties or civil rights, not natural liberties or rights. Some civil liberties or rights are constitutional. One example is the right to an attorney protected by the Sixth Amendment. Other civil liberties or rights are statutory, such as the right to maternity or paternity leave, which is protected by the Family and Medical Leave Act of 1993.

The distinction between civil and natural rights played an important part in nineteenth-century American jurisprudence. The US Supreme Court in the Slaughter-House Cases, 83 U.S. 36 ( 1873 ), held that states were responsible for protecting the natural rights of their citizens and that the federal government had no power under the post–Civil War amendments to pass legislation protecting property and other natural rights, unless Congress was seeking to forbid state-sponsored racial discrimination. By comparison, the justices accorded Congress far more power to regulate the right to vote in federal elections, since that right was created by the Constitution.

The distinction between civil and natural rights may also influence practices of constitutional interpretation. To the extent a right is created by the Constitution, some version of originalism may seem an attractive means of interpretation. If, for example, the Framers of the Sixth Amendment created the right to trial by jury, then persons interpreting the Sixth Amendment might best start by figuring out what precisely the Framers meant to protect. If, however, the Framers of the First Amendment thought they were merely recognizing a preexisting liberty, then constitutional analysis might best begin by figuring out the nature of that preexisting liberty. Some evidence exists, at least in the nineteenth century, that civil and natural rights were interpreted differently by constitutional decision makers.

This distinction between civil and natural rights eroded during the twentieth century. Progressives and New Dealers insisted that property was as much a civil right as the right to vote. Contract law, in this view, created rights to property in the same way that the decision to make the presidency an elected office created the right to vote for the president. One consequence of abandonment of natural law thinking is that all rights and liberties became civil rights and civil liberties. Some judges speak of universal human rights, but general agreement exists that all constitutional rights are human in origin and should be interpreted as such.

This is most evident in the undergraduate and law school curriculum. Constitutional law is routinely divided into two courses. The first is on the structures and powers of government. The second is on civil liberties. The civil liberties course covers all rights on civil liberties, whether or not those rights were regarded as natural or civil by constitutional thinkers at the framing or when the post– Civil War amendments were drafted. Indeed, in most courses, even courses taught by the few remaining natural law theorists, little effort is made to even remember the preexisting distinction between civil and natural rights.

SEE ALSO Civil War Amendments ; Natural Law ; Natural Rights ; Rights, Negative ; Rights, Positive ; US Bill of Rights .


Brandwein, Pamela. Rethinking the Judicial Settlement of Reconstruction. New York: Cambridge University Press, 2011.

Hale, Robert L. “Coercion and Distribution in a Supposedly Non-Coercive State.” Political Science Quarterly 38, no. 3 (1923): 470–94.

Simon, Stephen A. Universal Rights and the Constitution. Albany: State University of New York Press, 2014.

Mark A. Graber
University of Maryland Carey School of Law