“… the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

 

- J.S. Mill, On Liberty


Civil Liberties v. Civil Rights

 

Berlin’s Two Concepts of Liberty[1]

 

Negative liberty:

“What is the area within which the subject - a person or group of persons - is or should be left to do or be what he is able to do or be, without interference by other persons?”

-        right to be left alone

-        right to privacy

-        freedom of autonomy from external restraint

 

Positive liberty:

“What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”

-        participation in the democratic process makes one free (Rousseau)

o     right to citizenship; right to vote

o     republic as check on tyranny

-        freedom to learn

-        right to know

 

 

-        Civil liberties as negative liberties

-        Civil Rights as positive liberties

o     How clear is this distinction ?

 

 

Meaning of liberty

-        Constitution and Bill of Rights precede J.S. Mill’s On Liberty (1859)

-        Mill’s harm principle

-        Does the Constitution and Bill of Rights accept this?

o     No explicit endorsement

o     Bad timing 1787 v. 1859?

o     Is it implicit?

 

Judicial Interpretation by Supreme Court

-        “penumbra” of rights (Griswold v. Connecticut)

-        enumerated rights imply other rights in order to function

 

 

“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Griswold v. Connecticut, 1965)

 



[1] Berlin, I., 1969, ‘Two Concepts of Liberty’, in I. Berlin, Four Essays on Liberty, London: Oxford University Press. New ed. in Berlin 2002.