civil liberties essay questions

Chapter 4: Civil Liberties

What Are Civil Liberties?

Learning objectives.

By the end of this section, you will be able to:

Define civil liberties and civil rights
Describe the origin of civil liberties in the U.S. context
Identify the key positions on civil liberties taken at the Constitutional Convention
Explain the Civil War origin of concern that the states should respect civil liberties

The U.S. Constitution —in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to “persons,” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms when they are in the United States or its territories as adult citizens do. So, whether you are a Japanese tourist visiting Disney World or someone who has stayed beyond the limit of days allowed on your visa, you do not sacrifice your liberties. In everyday conversation, we tend to treat freedoms, liberties, and rights as being effectively the same thing—similar to how separation of powers and checks and balances are often used as if they are interchangeable, when in fact they are distinct concepts.

DEFINING CIVIL LIBERTIES

To be more precise in their language, political scientists and legal experts make a distinction between civil liberties and civil rights, even though the Constitution has been interpreted to protect both. We typically envision civil liberties as being limitations on government power, intended to protect freedoms that governments may not legally intrude on. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion; the states and the national government cannot forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. You are free to create your own religion and recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion may be regulated if it impinges on the rights of others. Similarly, the Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, as we will see later in this chapter, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects.

The idea that Americans—indeed, people in general—have fundamental rights and liberties was at the core of the arguments in favor of their independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of John Locke to express the colonists’ belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to his or her subjects. It was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities (Figure) .

A photo of three civil rights activists, from left to right, Sidney Poitier, Harry Belafonte, and Charlton Heston.

CIVIL LIBERTIES AND THE CONSTITUTION

The Constitution as written in 1787 did not include a Bill of Rights , although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution believed they faced much more pressing concerns than the protection of civil rights and liberties, most notably keeping the fragile union together in the light of internal unrest and external threats.

Moreover, the framers thought that they had adequately covered rights issues in the main body of the document. Indeed, the Federalists did include in the Constitution some protections against legislative acts that might restrict the liberties of citizens, based on the history of real and perceived abuses by both British kings and parliaments as well as royal governors. In Article I , Section 9, the Constitution limits the power of Congress in three ways: prohibiting the passage of bills of attainder, prohibiting ex post facto laws, and limiting the ability of Congress to suspend the writ of habeas corpus.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

Finally, the writ of habeas corpus is used in our common-law legal system to demand that a neutral judge decide whether someone has been lawfully detained. Particularly in times of war, or even in response to threats against national security, the government has held suspected enemy agents without access to civilian courts, often without access to lawyers or a defense, seeking instead to try them before military tribunals or detain them indefinitely without trial. For example, during the Civil War, President Abraham Lincoln detained suspected Confederate saboteurs and sympathizers in Union-controlled states and attempted to have them tried in military court s, leading the Supreme Court to rule in Ex parte Milligan that the government could not bypass the civilian court system in states where it was operating. [2]

More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought, with mixed results, to avoid trials in civilian courts. Hence, there have been times in our history when national security issues trumped individual liberties.

A photo of a group of people in a military commission, seated in chairs around a number of tables arranged in a U shape.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of enumerated powers of Congress, along with the limitations on those powers in Article I , Section 9, would suffice, and no separate bill of rights was needed. Alexander Hamilton , writing as Publius in Federalist No. 84, argued that the Constitution was “merely intended to regulate the general political interests of the nation,” rather than to concern itself with “the regulation of every species of personal and private concerns.” Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights not included in such a list were not protected. Later, James Madison , in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” [4]

For that matter, the Articles of Confederation had not included a specific listing of rights either.

However, the Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the elastic clause in Article I, Section 8, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus , whom most scholars believe to be Robert Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” [5]

The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution’s lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.

Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights (Figure) .

EXTENDING THE BILL OF RIGHTS TO THE STATES

In this case, which dealt with property rights under the Fifth Amendment , the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

In the wake of the Civil War, however, the prevailing thinking about the application of the Bill of Rights to the states changed. Soon after slavery was abolished by the Thirteenth Amendment , state governments—particularly those in the former Confederacy—began to pass “black codes” that restricted the rights of former slaves and effectively relegated them to second-class citizenship under their state laws and constitutions. Angered by these actions, members of the Radical Republican faction in Congress demanded that the laws be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted the black codes. Their long-term solution was to propose two amendments to the Constitution to guarantee the rights of freed slaves on an equal standing with whites; these rights became the Fourteenth Amendment , which dealt with civil liberties and rights in general, and the Fifteenth Amendment , which protected the right to vote in particular (Figure) . But, the right to vote did not yet apply to women or to Native Americans.

Photo A is of John Bingham. Photo B is of Abraham Lincoln.

With the ratification of the Fourteenth Amendment in 1868, civil liberties gained more clarification. First, the amendment says, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which is a provision that echoes the privileges and immunities clause in Article IV , Section 2, of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years; some have argued that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, while others have argued that only some rights are extended. In 1999, Justice John Paul Stevens , writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. [7]

More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. [8]

The second provision of the Fourteenth Amendment that pertains to applying the Bill of Rights to the states is the due process clause, which says, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This provision is similar to the Fifth Amendment in that it also refers to “due process,” a term that generally means people must be treated fairly and impartially by government officials (or with what is commonly referred to as substantive due process). Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that it indicates there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. [9]

Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into the practices of the states; in other words, the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.

For example, under the Fifth Amendment a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try the person for the crime in question. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) But the Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

Selective incorporation is an ongoing process. When the Supreme Court initially decided in 2008 that the Second Amendment protects an individual’s right to keep and bear arms, it did not decide then that it was a fundamental liberty the states must uphold as well. It was only in the McDonald v. Chicago case two years later that the Supreme Court incorporated the Second Amendment into state law. Another area in which the Supreme Court gradually moved to incorporate the Bill of Rights regards censorship and the Fourteenth Amendment. In Near v. Minnesota (1931), the Court disagreed with state courts regarding censorship and ruled it unconstitutional except in rare cases. [10]

The Bill of Rights is designed to protect the freedoms of individuals from interference by government officials. Originally these protections were applied only to actions by the national government; different sets of rights and liberties were protected by state constitutions and laws, and even when the rights themselves were the same, the level of protection for them often differed by definition across the states. Since the Civil War, as a result of the passage and ratification of the Fourteenth Amendment and a series of Supreme Court decisions, most of the Bill of Rights’ protections of civil liberties have been expanded to cover actions by state governments as well through a process of selective incorporation. Nonetheless there is still vigorous debate about what these rights entail and how they should be balanced against the interests of others and of society as a whole.

Green v. County School Board of New Kent County , 391 U.S. 430 (1968); Allen v. Wright , 468 U.S. 737 (1984). ↵
Ex parte Milligan , 71 U.S. 2 (1866). ↵
Ex parte Quirin , 317 U.S. 1 (1942); See William H. Rehnquist. 1998. All the Laws but One: Civil Liberties in Wartime . New York: William Morrow. ↵
American History from Revolution to Reconstruction and Beyond, “Madison Speech Proposing the Bill of Rights June 8 1789,” http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php (March 4, 2016). ↵
Constitution Society, “To the Citizens of the State of New-York,” http://www.constitution.org/afp/brutus02.htm (March 4, 2016). ↵
Barron v. Baltimore , 32 U.S. 243 (1833). ↵
Saenz v. Roe , 526 U.S. 489 (1999). ↵
McDonald v. Chicago , 561 U.S. 742 (2010). ↵
Sherbert v. Verner , 374 U.S. 398 (1963). ↵
Near v. Minnesota , 283 U.S. 697 (1931). ↵

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4.1 What Are Civil Liberties?

Learning objectives.

By the end of this section, you will be able to:

Define civil liberties and civil rights
Describe the origin of civil liberties in the U.S. context
Identify the key positions on civil liberties taken at the Constitutional Convention
Explain the Civil War origin of concern that the states should respect civil liberties

The U.S. Constitution —in particular, the first ten amendments that form the Bill of Rights—protects the freedoms and rights of individuals. It does not limit this protection just to citizens or adults; instead, in most cases, the Constitution simply refers to “persons,” which over time has grown to mean that even children, visitors from other countries, and immigrants—permanent or temporary, legal or undocumented—enjoy the same freedoms when they are in the United States or its territories as adult citizens do. So, whether you are a Japanese tourist visiting Disney World or someone who has stayed beyond the limit of days allowed on your visa, you do not sacrifice your liberties. In everyday conversation, we tend to treat freedoms, liberties, and rights as interchangeable—similar to how separation of powers and checks and balances are often used synonymously, when, in fact, these are distinct concepts.

DEFINING CIVIL LIBERTIES

To be more precise in their language, political scientists and legal experts make a distinction between civil liberties and civil rights, even though the Constitution has been interpreted to protect both. We typically envision civil liberties as limitations on government power, intended to protect freedoms upon which governments may not legally intrude. For example, the First Amendment denies the government the power to prohibit “the free exercise” of religion. This means that neither states nor the national government can forbid people to follow a religion of their choice, even if politicians and judges think the religion is misguided, blasphemous, or otherwise inappropriate. Unlike most of the rest of world at the time, U.S. citizens could even create their own faiths recruit followers to it (subject to the U.S. Supreme Court deeming it a religion), even if both society and government disapprove of its tenets. That said, the way you practice your religion, like any other practice, may be regulated if it impinges on the rights of others. To return to the previous example, religious communities may believe their faith will protect them and loved ones from disease, but they may not have the right to both not vaccinate their children and have those children publicly educated, where they would pose a risk to others. The Eighth Amendment says the government cannot impose “cruel and unusual punishments” on individuals for their criminal acts. Although the definitions of cruel and unusual have expanded over the years, the courts have generally and consistently interpreted this provision as making it unconstitutional for government officials to torture suspects. As we will see later in this chapter, courts are currently debating the degree to which extended solitary confinement and certain forms of capital punishment might count as cruel and unusual.

Civil rights , on the other hand, are guarantees that government officials will treat people equally and that decisions will be made on the basis of merit rather than race, gender, or other personal characteristics. Because of the Constitution’s civil rights guarantee, it is unlawful for any publicly-funded entity, such as a school or state university, or even a landlord or potential landlord to treat people differently based on their race, ethnicity, age, sex, or national origin. In the 1960s and 1970s, many states had separate schools where only students of a certain race or gender were able to study. However, the courts decided that these policies violated the civil rights of students who could not be admitted because of those rules. 2 In 2017, the Trump administration began enacting a policy at border entries in El Paso that entailed separating undocumented parents and children as they entered the United States. They expanded that policy in 2018. Today, the government continues to try to reunite families who were separated during that time. 3

The idea that Americans—indeed, people in general—have fundamental rights and liberties was at the core of the arguments in favor of their independence. In writing the Declaration of Independence in 1776, Thomas Jefferson drew on the ideas of English philosopher John Locke to express the colonists’ belief that they had certain inalienable or natural rights that no ruler had the power or authority to deny to their subjects. It was a scathing legal indictment of King George III for violating the colonists’ liberties. Although the Declaration of Independence does not guarantee specific freedoms, its language was instrumental in inspiring many of the states to adopt protections for civil liberties and rights in their own constitutions, and in expressing principles of the founding era that have resonated in the United States since its independence. In particular, Jefferson’s words “all men are created equal” became the centerpiece of struggles for the rights of women and minorities ( Figure 4.2 ).

Link to Learning

Founded in 1920, the American Civil Liberties Union (ACLU) is one of the oldest interest groups in the United States. The mission of this non-partisan, not-for-profit organization is “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.” Many of the Supreme Court cases in this chapter were litigated by, or with the support of, the ACLU. The ACLU offers a listing of state and local chapters on their website.

CIVIL LIBERTIES AND THE CONSTITUTION

The Constitution as drafted in 1787 did not include a Bill of Rights , although the idea of including one was proposed and, after brief discussion, dismissed in the final week of the Constitutional Convention. The framers of the Constitution believed they faced much more pressing concerns than the protection of civil rights and liberties—most notably keeping the fragile union together in the light of internal unrest and external threats.

A bill of attainder is a law that convicts or punishes someone for a crime without a trial, a tactic used fairly frequently in England against the king’s enemies. Prohibition of such laws means that the U.S. Congress cannot simply punish people who are unpopular or who seem to be guilty of crimes. An ex post facto law has a retroactive effect: it can be used to punish crimes that were not crimes at the time they were committed, or it can be used to increase the severity of punishment after the fact.

During World War II, the Roosevelt administration interned Japanese Americans and had other suspected enemy agents—including U.S. citizens—tried by military courts rather than by the civilian justice system, a choice the Supreme Court upheld in Ex parte Quirin ( Figure 4.3 ). 5 More recently, in the wake of the 9/11 attacks on the World Trade Center and the Pentagon, the Bush and Obama administrations detained suspected terrorists captured both within and outside the United States and sought to avoid trials in civilian courts, and surveilled U.S. citizens to detect threats. Hence, there have been times in our history when national security issues trumped individual liberties.

Debate has always swirled over these issues. The Federalists reasoned that the limited set of named or enumerated powers of Congress, along with the limitations on those powers in Article I , Section 9 of the Constitution, would suffice, and that no separate bill of rights was needed. Writing as Publius in Federalist No. 84, Alexander Hamilton argued that the Constitution was “merely intended to regulate the general political interests of the nation” rather than contend with “the regulation of every species of personal and private concerns.” Hamilton went on to argue that listing some rights might actually be dangerous, because it would provide a pretext for people to claim that rights not included in such a list were not protected. Later, James Madison , in his speech introducing the proposed amendments that would become the Bill of Rights, acknowledged another Federalist argument: “It has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions.” 6 Neither had the Articles of Confederation included a specific listing of rights, even if it was predictable that state governments would differ in what they would tolerate, grant, and prohibit among their citizens.

Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the so-called elastic clause in Article I, Section 8 of the Constitution would allow Congress to legislate on matters well beyond those foreseen by the Constitution’s authors. Thus, they held that a bill of rights was necessary. One of the Anti-Federalists, Brutus , whom most scholars believe to be Robert Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.” 7 The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard. While the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.

The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights from the Constitution nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution’s lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.

Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources. Each of these were extensively debated in both houses of Congress and, ultimately, proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights ( Table 4.1 ).

Finding a Middle Ground

Debating the need for a bill of rights.

One of the most serious debates between the Federalists and the Anti-Federalists was over the necessity of limiting the power of the new federal government with a Bill of Rights. As we saw in this section, the Federalists believed a Bill of Rights was unnecessary—and perhaps even dangerous to liberty, because it might invite violations of rights that weren’t included in it—while the Anti-Federalists thought the national government would prove adept at expanding its powers and influence and that citizens couldn’t depend on the good judgment of Congress alone to protect their rights.

As George Washington’s call for a bill of rights in his first inaugural address suggested, while the Federalists ultimately had to add the Bill of Rights to the Constitution in order to win ratification, the Anti-Federalists' fear that the national government might intrude on civil liberties proved to be prescient. In 1798, at the behest of President John Adams during the Quasi-War with France, Congress passed a series of four laws collectively known as the Alien and Sedition Acts. These laws were drafted to allow the president to imprison or deport foreign citizens that he believed were “dangerous to the peace and safety of the United States” and to restrict speech and newspaper articles critical of the federal government or its officials. The laws were primarily used against members and supporters of the opposition, the Democratic-Republican Party.

State laws and constitutions protecting free speech and freedom of the press proved ineffective in limiting this new federal power. Although the courts did not decide on the constitutionality of these laws at the time, most scholars believe the Sedition Act, in particular, would be ruled unconstitutional if it had remained in effect. Three of the four laws were repealed in the Jefferson administration, but one—the Alien Enemies Act—remains on the books today. Two centuries later, the issue of free speech and freedom of the press during times of international conflict remains a subject of intense public debate.

Should the government be able to restrict or censor unpatriotic, disloyal, or critical speech in times of international conflict? What about from government whistle-blowers or employees who leak sensitive information? How much freedom should journalists have to report on stories from the perspective of enemies or to repeat propaganda from opposing forces?

EXTENDING THE BILL OF RIGHTS TO THE STATES

In the decades following the Constitution’s ratification, the Supreme Court declined to expand the Bill of Rights to curb the power of the states, most notably in the 1833 case of Barron v. Baltimore . 8 In this case, which dealt with property rights under the Fifth Amendment , the Supreme Court unanimously decided that the Bill of Rights applied only to actions by the federal government, not state or local governments. Explaining the court’s ruling, Chief Justice John Marshall wrote that it was incorrect to argue that “the Constitution was intended to secure the people of the several states against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their [Federal] government.”

The festering issue of the rights of enslaved persons and the convulsions of the Civil War and its aftermath forced a reexamination of the prevailing thinking about the application of the Bill of Rights to the states. Soon after slavery was abolished by the Thirteenth Amendment , state governments—particularly those in the former Confederacy—began to pass “Black codes” that restricted the rights of formerly enslaved people, including the right to hold office, own land, or vote, relegating them to second-class citizenship. Angered by these actions, members of the Radical Republican faction in Congress demanded that the Black codes be overturned. In the short term, they advocated suspending civilian government in most of the southern states and replacing politicians who had enacted these discriminatory laws. Their long-term solution was to propose and enforce two amendments to the Constitution to guarantee the rights of freed men and women. These became the Fourteenth Amendment , which dealt with civil liberties and rights in general, and the Fifteenth Amendment , which protected the right to vote in particular ( Figure 4.4 ). though still not for women or Native Americans.

With the ratification of the Fourteenth Amendment in 1868, the scope and limits of civil liberties became clearer. First, the amendment says, “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” which is a provision that echoes the privileges and immunities clause in Article IV , Section 2 of the original Constitution ensuring that states treat citizens of other states the same as their own citizens. (To use an example from today, the punishment for speeding by an out-of-state driver cannot be more severe than the punishment for an in-state driver). Legal scholars and the courts have extensively debated the meaning of this privileges or immunities clause over the years, with some arguing that it was supposed to extend the entire Bill of Rights (or at least the first eight amendments) to the states, and others arguing that only some rights are extended. In 1999, Justice John Paul Stevens , writing for a majority of the Supreme Court, argued in Saenz v. Roe that the clause protects the right to travel from one state to another. 9 More recently, Justice Clarence Thomas argued in the 2010 McDonald v. Chicago ruling that the individual right to bear arms applied to the states because of this clause. 10

The second provision of the Fourteenth Amendment pertaining to the application of the Bill of Rights to the states is the due process clause , which famously reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Like the Fifth Amendment, this clause refers to “due process,” a term that is interpreted to require both access to procedural justice (such as the right to a trial) as well as the more substantive implication that people be treated fairly and impartially by government officials. Although the text of the provision does not mention rights specifically, the courts have held in a series of cases that due process also implies that there are certain fundamental liberties that cannot be denied by the states. For example, in Sherbert v. Verner (1963), the Supreme Court ruled that states could not deny unemployment benefits to an individual who turned down a job because it required working on the Sabbath. 11

Beginning in 1897, the Supreme Court has found that various provisions of the Bill of Rights protecting these fundamental liberties must be upheld by the states, even if their state constitutions and laws (and the Tenth Amendment itself) do not protect them as fully as the Bill of Rights does—or at all. This means there has been a process of selective incorporation of the Bill of Rights into the practices of the states: the Constitution effectively inserts parts of the Bill of Rights into state laws and constitutions, even though it doesn’t do so explicitly. When cases arise to clarify particular issues and procedures, the Supreme Court decides whether state laws violate the Bill of Rights and are therefore unconstitutional.

For example, under the Fifth Amendment , a person can be tried in federal court for a felony—a serious crime—only after a grand jury issues an indictment indicating that it is reasonable to try them. (A grand jury is a group of citizens charged with deciding whether there is enough evidence of a crime to prosecute someone.) The Supreme Court has ruled that states don’t have to use grand juries as long as they ensure people accused of crimes are indicted using an equally fair process.

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Unit 3: Civil liberties and civil rights

About this unit, the bill of rights.

The Bill of Rights: an introduction (Opens a modal)
The Bill of Rights: lesson overview (Opens a modal)
The Bill of Rights Get 3 of 4 questions to level up!

The First Amendment: freedom of religion

The First Amendment (Opens a modal)
Engel v. Vitale (1962) (Opens a modal)
Wisconsin v. Yoder (1972) (Opens a modal)
Freedom of religion: lesson overview (Opens a modal)
Freedom of religion Get 3 of 4 questions to level up!

The First Amendment: freedom of speech

Schenck v. United States (1919) (Opens a modal)
Tinker v. Des Moines (1969) (Opens a modal)
Freedom of speech: lesson overview (Opens a modal)
Freedom of speech Get 3 of 4 questions to level up!

The First Amendment: freedom of the press

New York Times Co. v. United States (1971) (Opens a modal)
Freedom of the press: lesson overview (Opens a modal)
Freedom of the press Get 3 of 4 questions to level up!

The Second Amendment

The Second Amendment (Opens a modal)
The Second Amendment: lesson overview (Opens a modal)
The Second Amendment Get 3 of 4 questions to level up!

Balancing individual freedom with public order and safety

The Fourth Amendment (Opens a modal)
The Eighth Amendment (Opens a modal)
Balancing individual freedom with public order and safety: lesson overview (Opens a modal)
Balancing individual freedom with public order and safety Get 3 of 4 questions to level up!

Selective incorporation

Selective incorporation (Opens a modal)
McDonald v. Chicago (Opens a modal)
Selective incorporation: lesson overview (Opens a modal)
Selective incorporation Get 3 of 4 questions to level up!

Due process and the rights of the accused

The Fifth Amendment (Opens a modal)
The Sixth Amendment (Opens a modal)
Miranda v. Arizona (Opens a modal)
Gideon v. Wainwright (1963) (Opens a modal)
Due process and the rights of the accused: lesson overview (Opens a modal)
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Due process and the right to privacy

Roe v. Wade (Opens a modal)
Due process and the right to privacy: lesson overview (Opens a modal)
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Social movements and equal protection

The Fourteenth Amendment and equal protection (Opens a modal)
Letter from a Birmingham Jail (Opens a modal)
Social movements and equal protection: lesson overview (Opens a modal)
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Government responses to social movements

Brown v. Board of Education of Topeka (Opens a modal)
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Balancing minority and majority rights

Rulings on majority and minority rights by the Supreme Court (Opens a modal)
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Affirmative action

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National Government, Crisis, and Civil Liberties

In this lesson stude

Guiding Questions

How do we balance the security of the nation with protections of individual liberties?
How much power should the federal government have over an individual’s civil liberties?
Students will define civil liberties.
Students will explain the limits of individual freedoms.
Students will explain the original intention of the Bill of Rights.
Students will analyze the balance that is needed in a federal republic between individual freedoms and the security of the country.

Expand Materials Materials

Educator Resources

Handout B: A Proclamation Answer Key
Handout D: Case Briefing Sheet Answer Key
Handout G: The History of Civil Liberty Laws Answer Key

Student Handouts

National Government, Crisis, and Civil Liberties Essay

Handout A: Abraham Lincoln and Habeas Corpus

Handout B: A Proclamation

Handout C: Milligan and the Constitution

Handout d: case briefing sheet.

Handout E: The Ruling

Handout F: Civil Liberty Laws

Handout G: The History of Civil Liberty Laws Table

Expand Key Terms Key Terms

Constitution
habeas corpus
military tribunal
civil liberties
Bill of Rights
civilian court
Amendment VI
speedy and public trial
Article I Sections 8 & 9
Article II Sections 2 & 3

Expand More Information More Information

Following this activity it would be helpful for students to learn of other more recent examples of the President’s need to balance national security with individual freedoms. One example is Security, Liberty, and the USA PATRIOT Act .

Expand Prework Prework

Have students read the National Government, Crisis, and Civil Liberties Essay prior to class time.

Basic understanding of civil liberties and the bill of rights is required for this activity. If more context than the introductory essay is needed, students may benefit from one or more of the following:

https://billofrightsinstitute.org/webinars/2021-ap-government-prep-with-paul-sargent-5-reviewing-civil-liberties
https://billofrightsinstitute.org/webinars/2021-ap-government-skills-with-john-burkowski-8-unit-3-civil-liberties-civil-rights-digital-exam
https://billofrightsinstitute.org/webinars/ap-government-prep-episode-7-civil-liberties

Other resources

https://billofrightsinstitute.org/games/life-without-the-bill-of-rights

Expand Warmup Warmup

Write this well-known quote on the board, but do not provide the source or date.

“[T]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” (Benjamin Franklin, Pennsylvania Assembly: Reply to the Governor, November 11, 1755).

Ask for student responses to the statement: agree/disagree/why. Share source of the quote, and tell students that tension between liberty and security is a recurring feature of U.S. history.

Expand Activities Activities

Have students read Handout A: Abraham Lincoln and Habeas Corpus . Display Handout B: A Proclamation . Point out the questions, and have students listen for the answers as you read the Proclamation aloud. Then go over the answers as a large group. Point out to students that in 1861, Lincoln suspended habeas corpus in some areas. The 1862 suspension of habeas corpus expanded to cover the entire nation.

Preparation for trial role-play: Tell students they will now simulate a trial of Mr. Milligan. Distribute Handout C: Milligan and the Constitution . Read aloud the scenario of Mr. Milligan, who has been sentenced to death for disloyalty by a military court. Divide the class into groups of appropriate size for: attorneys for Mr. Milligan, attorneys for the US, and the Justices of Supreme Court. Give each group a copy of Handout D: Case Briefing Sheet . Have groups complete Handout D using Handouts A , B , and C .

The trial: With about twenty minutes remaining, allow attorneys for the government to make their case, followed by attorneys from Mr. Milligan. The Supreme Court members should then deliberate and announce their verdict. Tell students that they were debating an actual Supreme Court case from 1866. Using Handout E: The Ruling , explain the information and ask students if they agree with the Court. Was Lincoln’s action constitutional? Ask students how they would assess Lincoln’s attempt to balance the strength of the government with the liberties of its people?

Break students into four groups and have each group read one of the policies on Handout F: Civil Liberty Laws . After they finish reading, they should do some background research to complete the graphic organizer on Handout G: The History of Civil Liberty Laws .

After each group has completed their section of Handout G , hold a class discussion about the historical implications of each of the policies and discuss how they affected civil liberties.

Expand Wrap Up Wrap Up

Students discuss and write a reflection on the balance between civil liberties and security as portrayed in this example. How do we know when we’ve gotten this issue right?

Expand Homework Homework

Students conduct research into another example of the tensions between security and individual freedom during a time of crisis in this nation. Depending upon the age and class, instructor could provide a list of examples and have students each pick one to research for homework. Students would write up their findings and share them with the class the next day.

Expand Extensions Extensions

Students research political cartoons exhibiting this tension between rights and liberties. Further investigation into the Bill of Rights and selective incorporation. Students explore how the federal government has intervened in state laws to prevent infringement of individual liberties.

Handout B: A Proclamation – Abraham Lincoln, 1862

Handout e: the ruling of ex parte milligan (1866), handout g: the history of civil liberty laws.

Next Lesson

State and Local Government

Related resources.

Civil Liberties and Coronavirus

The balancing of liberty and security is difficult, particularly in times of crisis. During the COVID-19 pandemic, both national and state governments across the country have exercised expansive powers to enact policies in an effort to slow the spread of the virus.

2021 AP Government Prep with Paul Sargent #5 | Reviewing Civil Liberties

Session 5: Civil Liberties This session investigates the history of civil liberties in the United States. Special attention is on the important Supreme Court cases that outlined modern civil liberties and the process of selective incorporation that applied the Bill of Rights to state governments.

2021 AP Government Skills with John Burkowski #8 | Unit 3: Civil Liberties & Civil Rights (Digital Exam)

In this episode, we review strategies in developing skills to best apply relevant content related to the interpretation, expansion, and limitation of individual freedoms by the various institutions of the American political system, particularly through landmark Supreme Court decisions.

2020 AP Government Prep Episode #7 | Civil Liberties

Session 7: Civil Liberties This session investigates the history of civil liberties in the United States. Special attention is on the important Supreme Court cases that outlined modern civil liberties and the process of selective incorporation that applied the Bill of Rights to state governments. The process was utilized significantly in working to obtain civil liberties specifically through the Due Process Clause and Equal Protection Clause of the 14th Amendment.

Home — Essay Samples — Law, Crime & Punishment — Civil Liberties — Civil Liberties vs Civil Rights In The US

Civil Liberties Vs Civil Rights in The Us

Categories: Civil Liberties Civil Rights Political Correctness

About this sample

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Published: May 14, 2021

Words: 1466 | Pages: 3 | 8 min read

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Essay: The New Idea of India

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Narendra Modi’s reign is producing a less liberal but more assured nation.

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From the middle of April until early June, staggered over the course of several weeks, the world’s biggest election will take place. More than 960 million Indians—out of a population of 1.4 billion—are eligible to vote in parliamentary elections that polls strongly suggest will return Prime Minister Narendra Modi and his Bharatiya Janata Party (BJP) to power for a third consecutive term.

Modi is probably the world’s most popular leader. According to a recent Morning Consult poll , 78 percent of Indians approve of his leadership. (The next three highest-ranked leaders, from Mexico, Argentina, and Switzerland, generate approval ratings of 63, 62, and 56 percent, respectively.) It is not hard to see why Modi is admired. He is a charismatic leader, a masterful orator in Hindi, and widely perceived as hard-working and committed to the country’s success. He is regarded as unlikely to turn to nepotism or corruption, often attributed to the fact that he is a 73-year-old man without a partner or children. Modi has few genuine competitors. His power within his party is absolute, and his opponents are fractured, weak, and dynastic—a quality usually equated with graft. Whether it is through maximizing his opportunity to host the G-20 or through his high-profile visits abroad, Modi has expanded India’s presence on the world stage and, with it, his own popularity. New Delhi is also becoming more assertive in its foreign policy, prioritizing self-interest over ideology and morality—another choice that is not without considerable domestic appeal.

Modi’s success can confuse his detractors. After all, he has increasingly authoritarian tendencies: Modi only rarely attends press conferences, has stopped sitting down for interviews with the few remaining journalists who would ask him difficult questions, and has largely sidestepped parliamentary debate. He has centralized power and built a cult of personality while weakening India’s system of federalism. Under his leadership, the country’s Hindu majority has become dominant. This salience of one religion can have ugly impacts, harming minority groups and calling into question the country’s commitment to secularism. Key pillars of democracy, such as a free press and an independent judiciary, have been eroded.

Yet Modi wins—democratically. The political scientist Sunil Khilnani argued in his 1997 book, The Idea of India , that it was democracy, rather than culture or religion, that shaped what was then a 50-year-old country. The primary embodiment of this idea, according to Khilnani, was India’s first prime minister, the anglicized, University of Cambridge-educated Jawaharlal Nehru, who went by the nickname “Joe” into his 20s. Nehru believed in a vision of a liberal, secular country that would serve as a contrast to Pakistan, which was formed explicitly as a Muslim homeland. Modi is, in many ways, Nehru’s opposite. Born into a lower-caste, lower-middle-class family, the current prime minister’s formative education came from years of traveling around the country as a Hindu community organizer, sleeping in ordinary people’s homes and building an understanding of their collective frustrations and aspirations. Modi’s idea of India, while premised on electoral democracy and welfarism, is substantially different from Nehru’s. It centers culture and religion in the state’s affairs; it defines nationhood through Hinduism; and it believes a powerful chief executive is preferable to a liberal one, even if that means the curtailment of individual rights and civil liberties. This alternative vision—a form of illiberal democracy—is an increasingly winning proposition for Modi and his BJP.

Hindus represent 80 percent of India’s population. The BJP courts this mega-majority by making them feel proud of their religion and culture. Sometimes, it aids this project by stirring up resentment of the country’s 200 million Muslims, who form 14 percent of the population. The BJP also attempts to further a version of history that interprets Hindus as victimized by successive hordes of invaders. Hindus hardly comprise a monolith, divided as they are by caste and language, but the BJP requires only half their support to win national elections. In 2014, it secured 31 percent of the national vote to gain a majority of seats in Parliament—the first time in three decades a single party had done so. It did even better in 2019, with 37 percent of the vote.

An illiberal, Hindi-dominated, and Hindu-first nation is emerging, and it is challenging—even eclipsing—other ideas of India, including Jawaharlal Nehru’s.

At least some part of the BJP’s success can be attributed to Modi’s name recognition and tireless performances on the campaign trail. But focusing too much on one man can be a distraction from understanding India’s trajectory. Even though Modi has acquired a greater concentration of power than any Indian leader in a generation, his core religious agenda has long been telegraphed by his party, as well as by its ideological parent, the Rashtriya Swayamsevak Sangh (RSS), a Hindu social society and paramilitary group that counts more than 5 million members. While Modi has been the primary face of the BJP since 2014, the party itself has existed in its current form since 1980. (The RSS, to which Modi traces his true ideological roots, is even older. It will mark its 100th anniversary next year.) The BJP’s vision—its idea of India—is hardly new or hidden. It is clearly described in its election manifestos and, combined with Modi’s salesmanship, is increasingly successful at the ballot box.

Put another way, while India’s current political moment has much to do with supply—in the form of a once-in-a-generation leader and few convincing alternatives—it may also have something to do with shifting demand. The success of the BJP’s political project reveals a clearer picture of what India is becoming. Nearly half the country’s population is under the age of 25. Many of these young Indians are looking to assert a new cultural and social vision of nationhood. An illiberal, Hindi-dominated, and Hindu-first nation is emerging, and it is challenging—even eclipsing—other ideas of India, including Nehru’s. This has profound impacts for both domestic and foreign policy. The sooner India’s would-be partners and rivals realize this, the better they will be able to manage New Delhi’s growing global clout. “The Nehruvian idea of India is dead,” said Vinay Sitapati, the author of India Before Modi . “Something is definitely lost. But the question is whether that idea was alien to India in the first place.”

Join FP Live for a discussion about the magazine’s India issue on Tuesday, April 16, at 11 a.m. EDT. Subscriber questions are encouraged. Register here .

Indians bristle at reports of how their country has fallen in recent years on key markers of the health of its civil society. It is nonetheless worth contending with those assessments. According to Reporters Without Borders, India ranked 161st out of 180 countries for press freedom in 2023, down from 80th out of 139 countries in 2002. Freedom House, which measures democracy around the world, marked India as only “partly free” in its 2024 report, with Indian-administered Kashmir receiving a “not free” designation. Only a handful of countries and territories, such as Russia and Hong Kong, experienced a greater decline in freedom over the last decade than India. The World Economic Forum’s 2023 Global Gender Gap Index ranks India 127th out of 146 countries. The World Justice Project ranks India 79th out of 142 countries for adherence to the rule of law, down from 59th in 2015. As one legal scholar wrote in Scroll.in , the judiciary has “placed its enormous arsenal at the government’s disposal in pursuit of its radical majoritarian agenda.” Consider, as well, access to the web: India has administered more internet shutdowns than any country in the last decade, even more than Iran and Myanmar.

The social indicator that worries observers of India the most is religious freedom. Troubles between Hindus and Muslims are not new. But in its decade in power, Modi’s BJP has been remarkably successful in furthering its Hindu-first agenda through legislation. It has done so by revoking the semi-autonomous status of majority-Muslim Kashmir in 2019 and later that year—an election year—passing an immigration law that fast-tracked citizenship for non-Muslims from three neighboring countries, each of which has a large Muslim majority. (The law, which makes it more difficult for Indian Muslims to prove their citizenship, was implemented in March. The timing of this announcement seemed to highlight its electoral benefits.)

Perhaps more damaging than these legislative maneuvers has been the Modi administration’s silence, and often its dog whistles of encouragement, amid an increasingly menacing climate for Indian Muslims. While Nehru’s emphasis on secularism once imposed implicit rules in the public sphere, Hindus can now question Muslims’ loyalty to India with relative impunity. Hindu supremacy has become the norm; critics are branded “anti-national.” This dominance culminated on Jan. 22, when Modi consecrated a giant temple to the Hindu god Ram in the northern Indian city of Ayodhya. The temple, which cost $250 million to build, was constructed on the site of a mosque that was demolished by a Hindu mob in 1992. When that happened three decades ago, top BJP leaders recoiled from the violence they had unleashed. Today, that embarrassment has morphed into an expression of national pride. “It is the beginning of a new era,” said Modi, adorned in a Hindu priest’s garb at the temple’s opening, in front of an audience of top Bollywood stars and the country’s business elite.

“The BJP’s dominance is primarily demand-driven,” Sitapati said. “Progressives are in denial about this.”

Modi’s vision of what it means to be Indian is at least partly borne out in public opinion. When the Pew Research Center conducted a major survey of religion in India between late 2019 and early 2020, it found that 64 percent of Hindus believed being Hindu was very important to being “truly Indian,” while 59 percent said speaking Hindi was similarly foundational in defining Indianness; 84 percent considered religion to be “very important” in their lives; and 59 percent prayed daily. “The BJP’s dominance is primarily demand-driven,” said Sitapati, who also teaches law and politics at Shiv Nadar University Chennai. “Progressives are in denial about this.”

Sitapati has critics on the left who claim his scholarship underplays the militant roots of the BJP and RSS, helping to rehabilitate their image. But on the question of demand and supply: The BJP’s dominance is limited to the country’s north, where most people speak Hindi. In the wealthier south, where tech firms are flourishing, literacy rates are higher, and most people speak languages such as Tamil, Telugu, and Malayalam, the BJP is decidedly less popular. Southern leaders harbor a growing resentment that their taxes are subsidizing the Hindi Belt in the north. This geographic cleavage could come to a head in 2026, when a national process of redistricting is expected to take place. Opposition leaders fear the BJP could redraw parliamentary constituencies to its advantage. If the BJP succeeds, it could continue winning at the polls long beyond Modi’s time.

Despite all this, Sitapati contends that the country remains democratic: “Political participation is higher than ever. Elections are free and fair. The BJP regularly loses state elections. If your definition of democracy is focused on the sanctity of elections and the substance of policies, then democracy is thriving.” In Indian society, he said, culture is not centered on liberalism and individual rights; Modi’s rise must be viewed within that context.

Liberal Indians who might disagree are vanishing from the public eye. One clear exception is the Booker Prize-winning novelist Arundhati Roy. Speaking in Lausanne, Switzerland, last September, she described an India descending into fascism . The ruling BJP’s “message of Hindu supremacism has relentlessly been disseminated to a population of 1.4 billion people,” Roy said. “Consequently, elections are a season of murder, lynching, and dog-whistling. … It is no longer just our leaders we must fear but a whole section of the population.”

Is the mobilization of more than a billion Hindus a form of tyranny of the majority? Not quite, says Pratap Bhanu Mehta, an Indian political scientist who teaches at Princeton University. “Hindu nationalists will say that theirs is a classic nation-building project,” he said, underscoring how independent India is still a young country. Populism, too, is an unsatisfying term for describing Modi’s politics. Even though he plays up his modest background, he is hardly anti-elitist and in fact frequently courts top Indian and global business leaders to invest in the country. Sometimes, they directly finance Modi’s success: A 2017 provision for electoral bonds brought in more than $600 million in anonymous donations to the BJP. The Supreme Court scrapped the scheme in March, calling it “unconstitutional,” but the ruling is likely too late to have prevented the influence of big donors in this year’s election.

Mukul Kesavan, a historian based in New Delhi, argues that it would be more accurate to describe the BJP’s agenda as majoritarianism. “Majoritarianism just needs a minority to mobilize against—a hatred of the internal other,” he said. “India is at the vanguard of this. There is no one else doing what we are doing. I am continually astonished that the West doesn’t see this.”

What the West also doesn’t always see is that Modi is substantially different from strongmen such as Donald Trump in the United States. While Trump propagated an ideology that eclipsed that of the Republican Party, Modi is fulfilling the RSS’s century-old movement to equate Indianness more closely with Hinduism. Surveys and elections both reveal this movement’s time has come.

“People aren’t blinkered. They’re willing to accept trade-offs,” said Mehta, explaining how growing numbers of Indians have accepted the BJP’s premise of a Hindu state, even if there are elements of that project that make them uncomfortable. “They don’t think the majoritarian agenda presents a deal-breaker.” For now, at least. A key question is what happens when majoritarianism provokes something that challenges public acceptance of this trade-off. The greatest risk here lies in a potential surge of communal violence, the likes of which have pockmarked Indian history. In 2002, for example, 58 Hindu pilgrims were killed in Godhra, in the western state of Gujarat, after a train that was returning from Ayodhya caught fire. Modi, then chief minister of Gujarat, declared the incident an act of terrorism. After rumors circulated that Muslims were responsible for the fire, a mob embarked on three days of violence in the state, killing more than a thousand people. An overwhelming majority of the dead were Muslim. Modi has never been convicted of any involvement, but the tragedy has followed him in ways both damaging and to his advantage. Liberal Indians were horrified that he didn’t do more to stop the violence, but the message for a substantial number of Hindus was that he would stop at nothing to protect them.

Twenty-two years later, Modi is a mainstream leader catering to a national constituency that is much more diverse than that of Gujarat. While the riots once loomed large in his biography, Indians now see them as just one part of a complicated career in the public eye. What is unknown is how they might react to another mass outbreak of communal violence and whether civil society retains the muscle to rein in the worst excesses of its people. Optimists will point out that India has been through tough moments and emerged stronger. When Prime Minister Indira Gandhi declared a state of emergency in 1975, giving her the license to rule by decree, voters kicked her out of power the first chance they got. Modi, however, has a stronger grip on the country—and he continues to expand his powers while winning at the ballot box.

Prime Minister Narendra Modi greets a crowd in Varanasi, India, on March 4, 2022. Ritesh Shukla/Getty Images

Just as citizens can’t subsist purely on the ideals of secularism and liberalism, it’s the same with nationalism and majoritarianism. In the end, the state must deliver. Here, Modi’s record is mixed. “Modi sees Japan as a model—modern in an industrial sense without being Western in a cultural sense,” Sitapati said. “He has delivered on an ideological project that is Hindu revivalism mixed with industrialization.”

India is undertaking a vast national project of state-building under Modi. Since 2014, spending on transport has more than tripled as a share of GDP. India is currently building more than 6,000 miles of highways a year and has doubled the length of its rural road network since 2014. In 2022, capitalizing on a red-hot aviation market, New Delhi privatized its creaky national carrier, Air India. India has twice as many airports today than it did a decade ago, with domestic passengers more than doubling in quantity to top 200 million. Its middle classes are spending more money: Average monthly per capita consumption expenditure in urban areas rose by 146 percent in the last decade. Meanwhile, India is whittling down its infamous bureaucratic hurdles to become an easier place for industry. According to the World Bank’s annual Doing Business report, India rose from a rank of 134th in 2014 to 63rd in 2020. Investors seem bullish. The country’s main stock index, the BSE Sensex, has increased in value by 250 percent in the last decade.

Strongmen are usually more popular among men than women. It is a strange paradox, then, that the BJP won a record number of votes by women in the 2019 national election and is projected to do so again in 2024, as voter participation , and voting by women, continues to climb. Modi has targeted female voters through the canny deployment of services that make domestic life easier. Rural access to piped water, for example, has climbed to more than 75 percent from just 16.8 percent in 2019. Modi declared India free of open defecation in 2019 after a campaign to build more than 110 million toilets. And according to the International Energy Agency, 45 percent of India’s electricity transmission lines have been installed in the last decade.

The most transformative force in the country is the ongoing proliferation of the internet, as I wrote in my 2018 book, India Connected . Just as the invention of the car more than a century ago shaped modern America, with the corresponding building out of the interstate system and suburbia, cheap smartphones have enabled Indians to partake in a burgeoning digital ecosystem. Though it didn’t have much to do with the smartphone and internet boom, the government has capitalized on it. India’s Unified Payments Interface, a government-run instant payment system, now accounts for three-fourths of all non-cash retail transactions in the country. With the help of digital banking and a new national biometric identification system, New Delhi has been able to sidestep corruption by directly transferring subsidies to citizens, saving billions of dollars in wastage.

Modi is projecting an image of a more powerful, muscular, prideful nation—and Indians are in thrall to the self-portrait.

The private sector has been a willing participant in India’s new digital and physical economy. But it has also been strangely leery of investing more, as two leading economists describe in this issue (Page 42). Businesses remain concerned that Modi has a cabal of preferred partners in his plans for industrialization—for example, he is seen as too cozy with the country’s two richest men, Mukesh Ambani and Gautam Adani, both of whom hail from his native state of Gujarat. Fears abound that New Delhi’s history of retroactive taxation and protectionism could blow up the best laid corporate plans.

Because he has corralled great power, when Modi missteps, the consequences tend to be enormous. In 2016, he suddenly announced a process of demonetization, recalling high-value notes of currency as legal tender. While the move attempted to reduce corruption by outing people with large amounts of untaxed income, it was in fact a stunt that reduced India’s growth by nearly 2 percentage points. Similarly, panicked by the onset of COVID-19 in 2020, Modi announced a sudden national lockdown, leading to millions of migrant workers racing home—and likely spreading the virus. A year later, New Delhi largely stood by when the delta variant of COVID-19 surged through the country, killing untold thousands of Indians. No amount of nationalism or pride could cover up for the fact that, on that occasion, the state had let its people down.

Now, with a population hungry for good news, India is looking to take advantage of the best foreign-policy deals. There are plenty to be struck in a shifting global order. The United States’ power is in relative decline, China’s has risen, and a range of so-called middle powers are looking to benchmark their status. Modi is projecting an image of a more powerful, muscular, prideful nation—and Indians are in thrall to the self-portrait.

Modi is seen through a video camera as he speaks at the final session of the G-20 summit in New Delhi on Sept. 10, 2023. Dan Kitwood/Getty Images

One window into India’s newfound status on the world stage came last September, after Canadian Prime Minister Justin Trudeau made the stunning announcement that Ottawa was investigating “credible allegations” that Indian government agents had orchestrated the murder of a Sikh community leader in British Columbia. New Delhi flatly denied his accusations, calling them “absurd.” The person who was killed, Hardeep Singh Nijjar, had sought to establish a nation called Khalistan, carved out of territory in his native Punjab, a state in northwestern India. In 2020, New Delhi declared Nijjar a terrorist.

A Canadian leader publicly accusing India of a murder on Canadian soil could have been a major embarrassment for Modi. Instead, the incident galvanized his supporters. The national mood seemed to agree with the government line that New Delhi didn’t do it but with an important subtext: If it did, it did the right thing.

“It’s this idea that ‘We have arrived. Now we can talk on equal terms to the white man,’” Sitapati said. It’s not just revisionism to examine how colonial powers masterminded the plunder of India’s land and resources; even the word “loot” is stolen from Hindi, as the writer and parliamentarian Shashi Tharoor has pointed out. The BJP’s project of nation-building attempts to reinstill a sense of self-pride, often by painting Hindus as the victims of centuries of wrongs but who have now awoken to claim their true status. This is why the Jan. 22 opening of the Ram temple took on epic significance, reviving among Hindus a sense that they were rightfully claiming the primacy they once enjoyed.

The flashier the stage, the better. For much of 2023, India flaunted its hosting of the G-20, a rotating presidency that most other countries see as perfunctory. For Modi, it became a marketing machine, with giant billboards advertising New Delhi’s pride in playing host (always alongside a portrait of the prime minister). When the summit began in September, TV channels dutifully carried key parts live, showing Modi welcoming a series of top world leaders.

Weeks earlier, Indians united around another celebratory moment. The country landed two robots on the moon, making it only the fourth country to do so and the first to reach the moon’s southern polar region. As TV channels ran a live broadcast of the landing, Modi beamed into mission control at the key moment of touchdown, his face on a split screen with the landing. The self-promotion can seem garish, but it feeds into a sense of collective accomplishment and national identity.

Also popular is New Delhi’s stance on Moscow, thumbing its nose at Western countries seeking to sanction Russia after its invasion of Ukraine. While Russia exported less than 1 percent of its crude to India before 2022, it now sends more than half of its supplies there. China and India are together purchasing 80 percent of Russia’s seaborne oil exports—and they do so at below-market rates because of a price cap imposed by the West. There is little consideration for morality, in part because Indians, like many in the global south, now widely perceive the West as applying double standards to world affairs. As a result, there’s no moral benchmark. For India, an advantageous oil deal is just that: good economics and smart politics. (India and Russia also share a historic friendship, which both sides are keen to continue.)

New Delhi’s growing foreign-policy assertiveness stems from a knowledge that it is increasingly needed by other countries. Allies seem aware of this new dynamic. For the United States, even if India doesn’t come to its aid in a potential tussle with China in the Taiwan Strait, merely preventing New Delhi from growing closer to Beijing represents a geopolitical win that papers over other disagreements. For other countries, access to India’s growing market is paramount. Despite the BJP’s hostility to Muslims, Modi receives a red-carpet welcome when he visits countries in the Persian Gulf.

India’s embrace of its strategic interests—and its confidence in articulating that choice—is of a piece with broader changes in how the country views itself. Modi and his BJP have succeeded in furthering an idea of India that makes a virtue of sacrificing Western liberalism for a homegrown sense of self-interest. By appealing to young people’s economic aspirations and their desire for identity in an increasingly interconnected world, the BJP has found room to advance a religious and cultural agenda that would have been unimaginable a generation ago. This vision cannot be purely top-down; the will of a nation evolves over time. In the future, there will likely be further contests among other ideas of India. But if Modi’s BJP continues to win at the ballot box, history may show that the country’s liberal experiment wasn’t just interrupted—it may have been an aberration.

Ravi Agrawal is the editor in chief of Foreign Policy . Twitter: @RaviReports

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With Abortion Ballot Question, a ‘Path to Relevance’ for Democrats in Florida?

Rulings allowing a strict abortion ban, along with a ballot question on expanding abortion access, may inject new life into Democratic campaigns in the state.

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About a dozen people are protesting abortion bans. Many are holding signs, some of which are written in Spanish.

By Patricia Mazzei

Reporting from Key West, Fla.

Suddenly, November got a lot more interesting in Florida.

The nation’s third-largest state, once the biggest battleground in presidential politics, has become less important as its election results have trended repeatedly toward the political right. Few consider it a true swing state anymore.

But three rulings from the Florida Supreme Court on abortion and marijuana, released on Monday, may inject new life into Democratic campaigns before the general election on Nov. 6.

The court, which leans conservative, upheld a ban on abortions after 15 weeks of pregnancy, allowing an even more restrictive six-week ban to soon take effect. However, the court also allowed a proposed constitutional amendment on the ballot that would guarantee access to abortion “before viability,” or at about 24 weeks.

In a third decision, the court gave the go-ahead to a separate ballot measure that would legalize recreational marijuana.

Taken together, Democrats see the rulings as an opening to drive their voters — and perhaps new voters likely to support their candidates — to the polls.

“It has the potential to pull out more voters, and those voters are more likely to be with us than with the other guys,” said Christina Reynolds, senior vice president of communications for Emily’s List, which supports and funds Democratic women running for office. “It draws some focus to Florida that might otherwise not be there, because we’ve had our hearts broken before.”

No one is suggesting that two constitutional amendments are enough to swing the presidential race in Florida against former President Donald J. Trump, a Palm Beach resident who won the state in 2016 and 2020. Though President Biden has traveled to Florida for fund-raisers, he is not expected to spend much time campaigning — or paying for expensive television advertising — in the state.

Mr. Biden’s campaign manager, Julie Chávez Rodríguez, said in a memo after the rulings were released that the president had an “opening” in Florida, though it “is not an easy state to win.”

In the past, Floridians have elected Republicans while also approving ballot proposals promoted by liberal-leaning groups, including ones that set a $15 hourly minimum wage, restored felons’ voting rights and legalized medical marijuana.

And Florida elections tend to be closer in presidential years than in midterm years. Moving a few thousand votes here and there could affect races down the ballot. On Monday, Democrats rushed to point out that Senator Rick Scott, a Republican running for re-election, said that he would have signed the six-week ban.

Gov. Ron DeSantis, a Republican, enacted the 15-week ban in 2022. Last year, as he prepared to run for president in more religious states like Iowa, he signed the six-week ban , even though polls have repeatedly shown that a majority of Floridians want most abortions to be legal. Mr. Trump criticized Mr. DeSantis for supporting the six-week ban, calling it “a terrible thing.”

Several political observers noted that Mr. DeSantis’s party might have had an easier time rallying voters against the abortion ballot measure if Republicans had stuck with the 15-week ban.

“Abortion is to Republicans what immigration is to Democrats: If you’re talking about it, it’s a complication, it’s a problem, it’s an obstacle,” said Carlos Curbelo, a former Republican congressman from Miami. “It just gives Democrats a path to relevance in the state again, where they’ve been just kind of completely bankrupt for some years now.”

Florida Democrats have lost significant ground in voter registration to Republicans, struggled to raise money and failed to organize a political apparatus that can compete with the perennially well-funded Republican machine. In 2022, Mr. DeSantis flipped Miami-Dade County , the state’s most populous county, which had previously been part of Democrats’ liberal stronghold in southeast Florida.

Anna Hochkammer, the executive director of the Florida Women’s Freedom Coalition, said that she expected the effect of the abortion ballot measure to be “significant” for other races. Polling conducted last month for her group and Floridians Protecting Freedom, which includes Planned Parenthood and the American Civil Liberties Union, showed 73 percent support for the constitutional amendment, she said. It needs more than 60 percent to pass.

“Supporters tend to be quite firm in their support, while opponents tend to be quite squishy,” Ms. Hochkammer said. “This polls well across all demographics. It’s motivating to young people and women, too. No one can deny that it will shape the voter universe.”

State Representative Paul Renner, a Republican who is the speaker of the Florida House, told reporters on Monday that legislative leaders would help try to defeat the abortion ballot measure. Anti-abortion groups have vowed to wage a vigorous campaign.

“There will be an organized effort, I can say that definitively,” Mr. Renner said. “The effort really will be focused on those in the middle in Florida.”

He and other Republican lawmakers portrayed the six-week abortion ban as a common-sense compromise that allows for exceptions when the mother’s health is at stake. The 15-week ban does not have exceptions for rape or incest, though the six-week ban does.

Mr. Renner dismissed a suggestion that the abortion and marijuana ballot questions would make the general election more competitive. “No,” he said. “I think every election is important and consequential.”

“With full education and with full understanding of what these amendments do,” he added, “they’ll both be voted down.”

But members of the board of the RBG Fund, a Tallahassee organization that provides financial assistance to people who travel to Florida to receive an abortion because the rules in their home states are more restrictive, said that they felt the political ground shift.

“Everybody who was biting their nails about this decision is jubilant right now,” said Karen Woodall, 66. “This is going to inspire people.”

Valerie Crowder contributed reporting from Tallahassee, Fla.

Patricia Mazzei is the lead reporter for The Times in Miami, covering Florida and Puerto Rico. More about Patricia Mazzei

Our Coverage of the 2024 Presidential Election

News and Analysis

President Biden and Democrats seized on a ruling by Arizona’s highest court upholding an 1864 law that bans nearly all abortions, setting up a fierce political fight over the issue.

By the time his first term was over, Donald Trump had cemented his place as the most anti-abortion president in U.S. history. Now, he’s trying to change that reputation .

Allies of Trump are discussing ways to elevate third-party candidates in battleground states to divert votes away from Biden.

In the run-up to the 2020 election, more voters identified as Democrats than Republicans. But four years into Biden’s presidency, that gap has shrunk .

Protests over the Biden administration’s handling of the war in Gaza are disrupting the activities of Democratic officials, complicating their ability to campaign during a pivotal election year .

For all Trump’s populist rhetoric in 2016, his presidency proved to be business-friendly. But Trump and those around him are signaling that a second term would be different .

It’s usually a given that Republicans will win voters 65 and over, but that’s not the case in this election. Nate Cohn, our chief political analyst, explains Biden’s strength among seniors .

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What Are Civil Liberties?

DEFINING CIVIL LIBERTIES

CIVIL LIBERTIES AND THE CONSTITUTION

EXTENDING THE BILL OF RIGHTS TO THE STATES

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With Abortion Ballot Question, a ‘Path to Relevance’ for Democrats in Florida?

Our Coverage of the 2024 Presidential Election

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