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| | *the free speech clause, which is used by both sides of the political spectrum | | *the free speech clause, which is used by both sides of the political spectrum |
| | *other freedoms, such as freedom of the press, the right to assemble, the right to petition government, and the implied "freedom of association": | | *other freedoms, such as freedom of the press, the right to assemble, the right to petition government, and the implied "freedom of association": |
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| − | Please keep in mind that nowhere in the Bill of Rights, or anywhere else in the Constitution, is there a requirement for a "wall of separation between church and state." That quote is from a letter written years after the Constitution and Bill of Rights were ratified, by someone who was not even at the Constitutional Convention: Thomas Jefferson. It takes much more to amend the Constitution than for one person to write a letter.
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| | The Fourth Amendment is important because it provides some protection against government searches of homes, cars, and other personal property (unless a resident consents or there is a search warrant) | | The Fourth Amendment is important because it provides some protection against government searches of homes, cars, and other personal property (unless a resident consents or there is a search warrant) |
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| | *the Tenth Amendment, which protects the rights of the States and the people except when powers are expressly given to the federal (national) government | | *the Tenth Amendment, which protects the rights of the States and the people except when powers are expressly given to the federal (national) government |
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| − | There are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Let's consider them next.
| + | Let's now look at the some of the most controversial provisions in the Bill of Rights: |
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| − | == Amendments 11-27 == | + | ===The Establishment Clause=== |
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| − | ==The Establishment Clause==
| + | The [[Establishment Clause]] is the very first clause in the Bill of Rights: “[[Congress]] shall make no law respecting an establishment of religion ....” |
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| − | The [[Establishment Clause]] is the very first clause in the Bill of Rights: “[[Congress]] shall make no law respecting an establishment of religion ....”
| + | Nowhere in the Bill of Rights, or anywhere else in the Constitution, is there a requirement for a "wall of separation between church and state." That quote is from a letter written years after the Constitution and Bill of Rights were ratified, by someone who was not even at the Constitutional Convention: Thomas Jefferson. It takes much more to amend the Constitution than for one person to write a letter. |
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| | For most of us, the Bible is the source of knowledge and its moral rules are the source of American law. The Ten Commandments are the best set of specific, formal rules of conduct ever devised. Our country was founded on its principles, and our legal system is guided by its wisdom. | | For most of us, the Bible is the source of knowledge and its moral rules are the source of American law. The Ten Commandments are the best set of specific, formal rules of conduct ever devised. Our country was founded on its principles, and our legal system is guided by its wisdom. |
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| | “Thou shalt not kill,” the Sixth Commandment, is echoed in numerous laws against killing in America. Similarly, the other Commandments have inspired countless laws and notions of justice. | | “Thou shalt not kill,” the Sixth Commandment, is echoed in numerous laws against killing in America. Similarly, the other Commandments have inspired countless laws and notions of justice. |
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| − | Why is the posting of the Ten Commandments on state property even subject to federal jurisdiction? For most of our history, the Establishment Clause was not even applied by federal courts against the states. The First Amendment, after all, applies by its terms only to Congress. See the above quote.
| + | But in the middle of the 20th century some on the U.S. Supreme Court, seeking to limit the influence of Christianity, first applied the Establishment Clause against the States in a decision that upheld what the State was doing. In that decision, the Court agreed with the State but established a precedent for ruling against States in the future under the Establishment Clause. Beware of expansions of federal power like that. It is like a stranger saying, “Open your front door, but don’t worry because I am not coming inside.” |
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| − | The Establishment Clause was first applied against the states in a decision that upheld what the state was doing. In other words, the Court agreed with the state. Beware of expansions of federal power like that. It is like a stranger saying, “Open your front door, but don’t worry because I am not coming inside.”
| + | The Supreme Court announced it would apply the Clause against the States, but then appeared reasonable in deferring to the states. The Supreme Court thereby opened the door but stood outside to make it look friendly. Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments. |
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| − | The Supreme Court announced it would apply the Clause against the states, but then appeared reasonable in deferring to the states. The Supreme Court thereby opened the door but stood outside to make it look friendly. Only later did it enter and beginning demanding that states end prayer and take down the Ten Commandments. | |
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| | 55 years ago, students in public high school in [[New Jersey]] recited the “Our Father” ever morning. States were then free to do this, and schools were much better because of it. But in 1962, in ''[[Engel v. Vitale]]'', the Supreme Court applied the Establishment Clause to abolish school prayer. | | 55 years ago, students in public high school in [[New Jersey]] recited the “Our Father” ever morning. States were then free to do this, and schools were much better because of it. But in 1962, in ''[[Engel v. Vitale]]'', the Supreme Court applied the Establishment Clause to abolish school prayer. |
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| − | In 1973, the federal court of appeals for the [[Tenth Circuit]] (which includes Colorado and Utah) allowed a permanent 3x5-foot granite monolith inscribed with a version of the Ten Commandments and other religious symbols. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). More recently, the federal Court of Appeals for the Third Circuit (which includes New Jersey and Pennsylvania) permitted a plaque honoring the Ten Commandments to remain on a courthouse wall. Freethought Soc'y v. Chester County, 334 F.3d 247 (3d Cir. 2003).
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| | “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.” So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights. Philadelphia Daily American Advertiser, Sept. 19, 1796. | | “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men & citizens.” So wrote President George Washington in his historic Farewell Address, published five years after the passage of the Bill of Rights. Philadelphia Daily American Advertiser, Sept. 19, 1796. |
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| | President John Adams echoed the same conviction: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” 9 The Works of John Adams, Second President of the United States 229 (Charles Francis Adams, ed. 1854). | | President John Adams echoed the same conviction: “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” 9 The Works of John Adams, Second President of the United States 229 (Charles Francis Adams, ed. 1854). |
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| − | Despite this, a federal judge ordered Chief Justice Roy Moore of the Alabama Supreme Court to remove a display in the state courthouse honoring the Ten Commandments. He was then himself removed from office for not immediately obeying the federal judge. In addition to misapplying the Establishment Clause, this decision also infringes on the Tenth and Eleventh Amendments. The interior decoration of the Alabama Supreme Court is an integral part of traditional state government, never ceded to the federal government. The citizens of Alabama should have the power to decide what goes in their own Supreme Court building. However, it should be noted that the 14th Amendment extends the prohibitions on Congress making laws abridging liberties to the states. (See [[incorporation doctrine]]).
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| | Nothing in the First Amendment requires censorship of the Ten Commandments, which neither establishes a religion nor coerces anyone to believe. Those who oppose the moral message may feign offense, but appeasing the hypersensitive is not a goal of the First Amendment. Its prohibition on an establishment of religion does not require purging recognition of religion from everything public. Federal law expressly references God numerous times, as do our coins and officials’ oaths of office. The United States Supreme Court itself features Moses holding the sacred tablets. | | Nothing in the First Amendment requires censorship of the Ten Commandments, which neither establishes a religion nor coerces anyone to believe. Those who oppose the moral message may feign offense, but appeasing the hypersensitive is not a goal of the First Amendment. Its prohibition on an establishment of religion does not require purging recognition of religion from everything public. Federal law expressly references God numerous times, as do our coins and officials’ oaths of office. The United States Supreme Court itself features Moses holding the sacred tablets. |
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| − | NOTE: do not confuse the Establishment Clause with the Free Exercise Clause, which follows it in the First Amendment: “Congress shall make no law ... prohibiting the free exercise thereof ....” A homework question asks about the difference. | + | NOTE: do not confuse the Establishment Clause with the Free Exercise Clause, which follows it in the First Amendment: “Congress shall make no law ... prohibiting the free exercise thereof ....” |
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| | ==Free Speech== | | ==Free Speech== |
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| | Free speech can include the right to hear. It can include a right to publish the laws. When combined with free press, it can protect newspapers who seeking to publish governmental secrets. | | Free speech can include the right to hear. It can include a right to publish the laws. When combined with free press, it can protect newspapers who seeking to publish governmental secrets. |
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| − | The right to free speech can even protect lies about public officials. Ronald and Nancy Reagan could not sue CBS and expect to win concerning the lies it was going to air in a docu-drama. If you are a public figure, then others have a free speech right to make outrageous claims about you. Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her. | + | The right to free speech can even protect lies about public officials. If you are a public figure, then others have a free speech right to make outrageous claims about you. Only if the statements were made with malice, like a deliberate disregard for the truth, is a public figure allowed to recover damages for a lie spread about him or her. |
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| − | You may agree with some or all of the expansions of free speech rights above. In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded. Only pro-government moderates tend to oppose free speech in politics. Can you think of an example of someone famous who opposed free speech? (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in Schenck v. United States (1919), p. 346); note that kings tend to oppose free speech as well.) | + | You may agree with some or all of the expansions of free speech rights above. In general, conservatives and liberals tend to support broad free speech rights, and for that reason free speech has greatly expanded. Only pro-government moderates tend to oppose free speech in politics. Can you think of an example of someone famous who opposed free speech? (Answer: President John Adams and the Sedition Act; also Justice Oliver Wendell Holmes in ''Schenck v. United States'' (1919), p. 346); note that kings tend to oppose free speech as well.) |
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| − | Thumb through the famous cases at pp. 341-47 of the textbook and you will find very few that ruled against free speech, although there are many notable exceptions (''Morse v. Frederick'', 551 U.S. 393 (2007); ''Bethel School District v. Fraser'', 478 U.S. 675 (1986); ''Hill v. Colorado'', 530 U.S. 703 (2000); ''Renton v. Playtime Theatres, Inc.'', 475 U.S. 41 (1986)). Public schools do not allow full free speech (should it?). On one hand, it is easy to see why we would not allow students to be able to say whatever they like. Suppose they started talking about drugs? Suppose they wanted to be rude to the teachers?
| + | Public schools do not allow full free speech (should they?). On one hand, it is easy to see why we would not allow students to be able to say whatever they like. Suppose they started talking about drugs? Suppose they wanted to be rude to the teachers? |
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| | There is not free speech in the military, either. If you insult your commander, then he is going to punish you for insubordination. About twenty years before Japan sunk most of our ships at Pearl Harbor, General Billy Mitchell spoke out against how our top military commanders were leaving our navy unprotected against that sort of attack. Later events proved him to be completely right, but at the time he was court martialed for insubordination and was both humiliated and forced to resign. (After the Pearl Harbor attack and after Billy Mitchell died, our military admitted its mistake and reinstated his benefits). Should there be free speech in the military? | | There is not free speech in the military, either. If you insult your commander, then he is going to punish you for insubordination. About twenty years before Japan sunk most of our ships at Pearl Harbor, General Billy Mitchell spoke out against how our top military commanders were leaving our navy unprotected against that sort of attack. Later events proved him to be completely right, but at the time he was court martialed for insubordination and was both humiliated and forced to resign. (After the Pearl Harbor attack and after Billy Mitchell died, our military admitted its mistake and reinstated his benefits). Should there be free speech in the military? |
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| | Speaking of [[gambling]], is it free speech? Why not? (It’s more conduct than speech, and thus does not quality as free speech.) | | Speaking of [[gambling]], is it free speech? Why not? (It’s more conduct than speech, and thus does not quality as free speech.) |
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| − | Further, free speech does not generally protect one from the resulting consequences of that speech by private persons. For example, your boss may very well fire you for making unflattering statements about him off work. | + | Further, free speech does not generally protect one from the resulting consequences of that speech by private persons. For example, your boss has a right to fire someone for making unflattering statements about him on the internet. |
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| | ==Rights of Criminal Defendants== | | ==Rights of Criminal Defendants== |
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| − | The basic rights of criminal defendants include: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually that means a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a Miranda warning when taken into custody; (5) the right to a hearing before a judge if held in jail (writ of habeas corpus); and (6) protection against cruel and unusual punishment. There are other rights also. | + | The basic rights of criminal defendants include: (1) the right to trial by an impartial jury; (2) the right against unreasonable searches and seizures (usually that means a search without a warrant), (3) the right against Double Jeopardy (being retried after being found not guilty); (4) the right to receive a Miranda warning when taken into custody (established by the Supreme Court decision of ''Miranda v. Arizona''; (5) the right to a hearing before a judge if held in jail (writ of habeas corpus); and (6) protection against cruel and unusual punishment. There are other rights also. |
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| | Why do we protect criminal defendants far more than any other country? Should we? | | Why do we protect criminal defendants far more than any other country? Should we? |
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| − | Political moderates tend to think we give criminals far too many rights. President Nixon picked up a huge moderate vote by promising to be “tough on crime” and in favor of “law and order.” Conservatives at that time were also fed up with all the pro-defendant Supreme Court decisions of the “Warren Court” (i.e., the Supreme Court while Earl Warren was Chief Justice). It was the Warren Court that forced the police to tell suspected criminals that they have a “right to remain silent.” Many were outraged by that decision in Miranda v. Arizona (see p. 344).
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| | Today, however, some conservatives agree with liberals that the federal government has gone too far in expanding its criminal power. The Patriot Act was passed to combat terrorism, but it has now been used to investigate non-terrorists also. Almost no conservative is concerned about suspected terrorists in Guantanamo Bay, but conservatives are worried about abuse of federal powers against American citizens. President Bill Clinton’s White House was found to have top secret FBI files on his political opponents. Do we want a future president to be able to prosecute his adversaries? Do we want to allow even the chance of that? The Constitution only allows a few federal crimes, like treason or misconduct on the high seas. | | Today, however, some conservatives agree with liberals that the federal government has gone too far in expanding its criminal power. The Patriot Act was passed to combat terrorism, but it has now been used to investigate non-terrorists also. Almost no conservative is concerned about suspected terrorists in Guantanamo Bay, but conservatives are worried about abuse of federal powers against American citizens. President Bill Clinton’s White House was found to have top secret FBI files on his political opponents. Do we want a future president to be able to prosecute his adversaries? Do we want to allow even the chance of that? The Constitution only allows a few federal crimes, like treason or misconduct on the high seas. |
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| − | ==Gender Equality== | + | == Amendments 11-27 == |
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| − | Men and women, and boys and girls, are different in many important ways. Men like and are better at playing football, for example. This can be seen by flicking on the television on a fall Sunday afternoon. Women like fashion and are better at it, to take another example. Plumbers and firemen are almost entirely men; librarians and secretaries are almost entirely women. Mothers are entirely women! A gender-blind society where all differences are ignored is irrational and doomed for failure. Yet some insist that the law should push us towards a unisex society.
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| − | Why? For some, it’s just another way for them to oppose the Bible. Making men and women identical would wipe out the different roles of Adam and Eve and even try to cast some doubt on original sin, marriage and Jesus Christ. A unisex society would permit abortion to make women more like men. Gay marriage would be unstoppable in a gender-blind society.
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| − | The Equal Rights Amendment would have imposed a unisex society. It never passed, despite support by President Jimmy Carter, the Democratic and Republican Parties, and overwhelming majority of Congress and the entire media. Eagle Forum was founded as part of its successful effort to stop passage of the Amendment (“Stop ERA”).
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| − | However, Presidents Carter and Clinton did succeed in promoting gender equality in college sports, and the issue is on appeal before the D.C. Circuit right now. While Carter and then Clinton were presidents, the Department of Education issued and expanded a “proportionality test,” which encourages colleges to reduce the proportion of men on their sports teams to the overall proportion of men enrolled as students. 44 Fed. Reg. 71,418. This encourages colleges to make sure that “intercollegiate level participation opportunities for male and female athletes [be] provided in numbers substantially proportionate to their respective enrollments.”
| + | While we focus on the Bill of Rights (Amendments I through X), there are a total of 27 amendments to the U.S. Constitution, so there are 17 amendments in addition to the Bill of Rights. Among these the most important are the 14th and 15th Amendments, which were passed as a result of the Civil War, the 17th Amendment, which established for the direct election of U.S. Senators by the people, and the 22nd Amendment, which places a "term limit" of ordinarily two terms on a president. |
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| − | The result is that men are cut from college sports until their percent participation is the same as their percent enrollment. This is difficult because most colleges are predominantly female. Howard University eliminated both its wrestling and baseball teams to reduce its percentage of male athletes. Mark Asher, “Howard Drops Baseball, Wrestling,” Washington Post, D1 (May 23, 2002).
| + | ===14th Amendment=== |
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| − | The media discusses this issue under the name of “Title IX” of the Education Amendments Act of 1972, 20 U.S.C. §§ 1681-1688. It requires that no one “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance” on account of sex. But it also says that “[n]othing contained in . . . this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federal program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.” 20 U.S.C. § 1681(b). | + | The 14th Amendment is a broadly worded and expansively interpreted amendment that has been used by the U.S. Supreme Court to invent new "rights", such as abortion. The 14th Amendment was originally intended to end discrimination against African Americans after the Civil War. But then the U.S. Supreme Court used it to "incorporate" the Bill of Rights and apply them against state laws ("incorporation doctrine"). Then, beginning with the liberal "Warren Court" (led by Chief Justice Earl Warren), the U.S. Supreme Court began using the 14th Amendment to create new rights never before thought to be in the U.S. Constitution. The Warren Court ended when Chief Justice Earl Warren retired in 1969, but its decisions provided the basis for ''Roe v. Wade'' on January 22, 1973, which created a new constitutional "right" to abortion nationwide. The March for Life has been held in D.C. every year since in protest against that ruling. |
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| − | Colleges are now eliminating and “capping” mens teams. “Capping” means that rosters on male squads are reduced to minimize the number of males. Instead of carrying 30 players, a baseball team may cap it at 18 simply to reduce its numbers. This bean-counting encourages colleges to expel athletes from squads for the sole purpose of finagling the numbers, and even to eliminate teams entirely. Such termination or “capping” of teams, in order to limit the overall number of male athletes, deprives many of them the benefits and enjoyment of participating. This has no redeeming benefit.
| + | The 14th Amendment applies in many areas other than abortion. It creates rights of "due process" when dealing with government, which (for example) interferes with the ability of a school district to fire a bad public school teacher. Under the 14th Amendment, whenever government does anything against an individual, it must provide basic elements of due process. |
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| − | Even self-funded teams, like wrestling, cannot play in this numbers game. Some believe that liberal feminists really want to eliminate mens’ teams as their goal, since they resent all-male competitions like the Super Bowl, the World Series, and competitive wrestling. But this numerical equality causes all sorts of problems for women and men. Colleges are replacing their small, but popular, women’s gymnastics team with a larger crew team, made up of women with no crew experience or prior interest.
| + | What is "due process"? It means, most fundamentally, the right to advance notice of an action the government is going to take against you, and an opportunity to be heard in order to object to that action. For example, if government is going to try to take your property away from you (as in "eminent domain," when it takes private property to build a new highway), then it must give you advance notice and an opportunity to be heard against the idea. The Fifth Amendment requires the government to pay you "just compensation" if it does take your property. |
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| − | In California and Michigan there has been a big push to apply the “proportionality test” to public high schools. What do you think?
| + | ===15th Amendment=== |
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| − | ==Issues==
| + | The 15th Amendment ensures the right of everyone to vote, no matter what their race or ethnicity is (the 19th Amendment extended that right to all women). This 15th Amendment has been interpreted to prohibit any "literacy tests" (exams to see if someone can read a ballot) as a pre-condition of the right to vote. |
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| − | 1. What do you think of the proportionality test?
| + | ===17th Amendment=== |
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| − | 2. Should there be free speech in public high school?
| + | When the U.S. Constitution was ratified and all through the 1800s, state legislators selected the U.S. Senators who would represent them. But the 17th Amendment shifted that power to the people, in direct elections, as part of the "progressive movement" that increased the level of democracy in the United States. |
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| − | 3. Should there be free speech in the military?
| + | ===22nd Amendment=== |
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| − | 4. Do you think the Patriot Act, passed to fight terrorism, should be applied to criminals who are not terrorists?
| + | President George Washington set the "precedent" (an example that is so strong that it is rule) that American presidents should stay in office for only two terms, and then resign so that power can shift to someone new. But Democrat Franklin Delano Roosevelt, hungry for power, broke the precedent and was elected to four terms, eventually dying in office from an illness. Within years the Republican-controlled Congress passed term limits for the office of president, prohibiting a president who has served two full terms from being elected again. This prevents a president from trying to grab too much power for too long. |
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| − | 5. What do you think of charitable immunity, whereby charities are immune from being sued for large damages?
| + | ==Quiz== |
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| | + | This week the assignment will be to take the fourth quiz, which will be emailed to you. |
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| | [[Category:American Government lectures]] | | [[Category:American Government lectures]] |
| | {{DEFAULTSORT:American Government Lecture 10}} | | {{DEFAULTSORT:American Government Lecture 10}} |