Civil liberties are rights afforded to people that the government cannot impose upon.

Civil rights govern government processes in an attempt to make them fair.

Is due process a civil right or liberty?

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    Can you cite a source for your definitions, please? – hszmv Dec 4 '19 at 18:52

Your distinction between civil rights and civil liberties does not enjoy support from the legal perspective. Typically, the law addresses rights, and "liberty" is invoked only in rhetorical flourishes (at least in the US legal context). "Right" is about the relationship between a person and actions. Liberty may be a consequence of certain rights.

Government protection of rights typically takes the form of forbidding the government to do certain things (things that interfere with a person's right to do certain things). The right to due process protects your right to live your life free from government interference, except when certain conditions are present (as stated in a law). Due Process (as a procedural requirement on government action) is neither a right nor a liberty, it is a restriction addressed to government power. Its purpose is to protect the rights of individuals.

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    I've never heard the 5th & 14th Amendments dismissed as "rhetorical flourishes." I guess they don't mean what they say when they say government can't deprive people of "life, liberty, or property, without due process of law." – Just a guy Dec 4 '19 at 17:17
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    I'm not at all dismissing the concept of liberty, I'm saying that it is a political concept translated into "right" in the legal context. – user6726 Dec 4 '19 at 17:33
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    I understand and agree. But I still don't get how you can say law treats liberty as a "rhetorical flourish" when the word liberty is (literally) in the definition of due process. I also don't see how your claim that law doesn't address liberty is consistent with all of those cases discussing exactly which liberties are protected by due process. law.cornell.edu/constitution-conan/amendment-14/section-1/… – Just a guy Dec 4 '19 at 17:56

TL;DNR: Using the definitions of civil liberties and civil rights that are now widely accepted in the US, due process is a civil liberty, not a civil right.

Civil Liberties versus Civil Rights:

This distinction can be found in the Oxford Companion to American Law. Its article on Civil Rights and Civil Liberties says the terms "should be distinguished," and defines them as follows:

Civil Liberties: Those rights we have, as individuals, that government must respect.

Civil Rights: Those rights we have, as individuals, to be treated equally with others.

Under these definitions, due process is a civil liberty not a civil right. Since the 14th Amendment explicitly mentions both due process and equal protection, due process is different from equal protection. Since this defintion makes equal protection the essence of civil rights, due process does not fit this definition.

Where this distinction comes from:

This way of distinguishing civil liberties from civil rights is relatively new. For most of our history, Americans used these terms interchangeably. Legal historians have shown that the two only became different after World War II, when “civil rights” came to mean the rights associated with the struggle for racial equality in the segregated the South. (This is why it’s the “Civil Rights Movement.”)

Legal historians have also shown that this change was motivated by practical, not logical or legal, considerations. Perhaps the most important of these considerations was the growing popular association of “civil liberties” with protection of the rights of unpopular groups, such Jehovah’s Witnesses and communists. It was to distinguish itself from such groups that those fighting racism began to distinguish “civil rights” from “civil liberties.”

Since then, the term civil rights has been applied to other groups using equality as a legal tool for fighting discrimination, such as women, LGBTQ, and so on.



Civil Liberties and civil rights are the same thing legally speaking. If the government violates my right to protest and assembly, they are also violating a civil right to protest and assembley. There is no distinction in a legal sense.

In an academic sense, Civil Liberties refers to protections and garentees that the citizen has when dealing with the government (In the U.S., there are no guarantees but there are very broad protections. A protection is a "negative right" of the citizen and a garentee is a positive right against the government. I have a negative right to free speech, which means the government cannot make it illegal to say any particular word. I do not have a positive right to free speech, which means I cannot force the government to make people listen to what I have to say. It's not the government's problem if no one wants my opinion on jelly flavors.).

The right to due process of is a negative right against the government using it's power to take away my rights because "we said you don't have them." Due process ensures that the government outline a neutral series of steps to determine if it has a compelling interest in restricting a right. Say I want to burn the flag and I am arrested for that action. There is a process in which I can argue why I should be allowed to burn the flag (I bought it, it's mine, I am symbollically speaking against a government policy I do not agree with) and the government can argue their case (it's drought season, wild fires occur during this time of year, fire bad (Frankenstien v. Villagers), it's in our interest to not have wild fires burn the town down, we don't let any one burn anything so as to not start a fire.) and address if it's in the best interest of the government (aka, the people who vote for the thing) to minimally restrict my right.

In American adidemic discussion, Liberties and Civil Rights are two different groups of Amendments to the Constitution. There are three safegaurds of liberties (Amendments 1, 2, and 3) and 7 Safeguards of Civil Rights (Amendments 13, 14, 15, 19, 23, 24, and 26). The Liberties are impositions on the government that block laws from being made that unreasonably restrict these activities of the people. There are five rights in Amendment one and one in both two and three. The Civil Rights amendments include four impositions on government barring it from making rules about, one restriction against any form of slave labor (except as punishment through due process of the law) and one imposition on state governments that block them from making laws that the Constitution says the Federal Government cannot due (States can make laws if the power to make the law was neither granted to federal government nor explicitly barred).

Due Process is a "Safeguard against justice" and is the underpinning right of Amendments 4, 5, 6, 7, and 8. These amendments are impostions on Government that they must provide to anyone who is accused of breaking a law. In the U.S. you have a right to a jury trial if accused, but you do not have to use it. You can request a bench trial. The accuser does not have a say in this decision. Due process itself is an imposition against the government banning arbitrary enforcement of the law and/or enforcement of the law without compliance with the Justice Amendments. If and only if the government follows the rules, than the government may restrict the rights of the entity.

It is important that in the case of the Constitution, there are lines that make it very clear that the government exists because of the consent of the governerned and therefor the government is restricted to doing exactly what it is charged to do in the constitution. That said, there is also language saying, to effect, that the constitution doesn't list all the rights granted to the people, and the government can't make laws against the rights of the people just because they weren't rights listed in the Constitution.

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