Part I: the ap united states government course examination



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To try to redefine foreign policy under the new set of circumstances brought about in 2001, we can begin with the Department of State, whose primary duty has always been the security of the nation. State Department goals include:


  • Protecting national security

  • Providing international leadership in developing world peace

  • Insuring a balance of power; keeping aggressive nations from overpowering weaker ones

  • Cooperating with other nations in solving international problems

  • Promoting human rights and democratic values

  • Fostering cooperative foreign trade and globalization of trade through international organization

These goals are both national and international in nature, and the 2001 attacks on the World Trade Towers and the Pentagon confirm the fact that national and international interests are not easily separated any more. President George W. Bush used a policy of preemption to justify the war in Iraq, or the principle of attacking before being attacked. A major reason for invading Iraq presented by the Bush administration was to locate and destroy weapons of mass destruction within the country’s borders. However, such weapons were never found during the U.S. occupation of the country.

WHO MAKES FOREIGN POLICY?

Many people and organizations within government have a hand in setting United States foreign policy. The main objective of foreign policy is to use diplomacy ö conferences, meetings, and agreements ö to solve international problems. They try to keep problems from developing into conflicts that require military settlements.



  • The President ö The leader in foreign policy is almost always the president. Presidents, or their representatives, meet with leaders of other nations to try to peacefully solve international problems. According to the Constitution, presidents sign treaties with other nations with the advice and consent of the Senate. So the Senate, and to a lesser extent, the House of Representatives, also participate in shaping foreign policy. Presidents may also make executive agreements with other heads of state that do not require Senate approval.

  • The Secretary of State As the head of the State Department, the Secretary is the chief coordinator of all governmental actions that affect relations with other countries. The State Department also includes the Foreign Service, which consists of ambassadors and other official U.S. representatives to more than 160 countries. Ambassadors and their staffs set up embassies in the countries and serve as the major American presence in their respective assigned countries. They protect Americans abroad and are responsible for harmonious relationships with other countries.

  • The National Security Council - As part of the Executive Office of the President, the Council helps the president deal with foreign, military, and economic policies that affect national security. Its members are the president, the vice president, the secretary of state, the secretary of defense, and any others that the president designates. The national security adviser coordinates the Council, and often has as much influence as the secretary of state, depending on his or her relationship to the president.

  • The Central Intelligence Agency - One of the most famous of all government agencies, the CIA gathers, analyzes, and transmits information from other countries that might be important to the security of the nation. Although the CIA is best-known for its participation in spy cases and top secret investigations, much of its work is public and routine. The CIA director is appointed by the President and confirmed by the Senate

With the passage of a major intelligence bill in late 2004, intelligence gathering was altered significantly. The bill created a national intelligence director, who certainly will play a major role in shaping foreign policy in the future.

MILITARY POLICY


Until 1947 the Cabinet-level official most directly responsible for military policy was called the secretary of war. The name changed to secretary of defense, and the department that this official heads has more federal employees than any other in the government. The department of defense is headquartered in the Pentagon, where about 25,000 military and civilian personnel work. The secretary of defense is always a civilian, and he supervises three large military departments ö Army, Navy, and Air Force.

Under the Constitution, the president is commander-in-chief of the armed forces, and he has used that authority to order American military forces into combat on many occasions. During peacetime, his most important military powers are those he exercises through the secretary of defense in managing the Department of Defense. The president and secretary of defense make important decisions regarding the military budget and distribution of funds among the military services.

The most important military advisory body to the secretary of defense is the Joint Chiefs of Staff. Its five members are the chiefs of staff of the three military departments, the commandant of the Marines, and a chair. All of the service chiefs are appointed by the president and must be confirmed by the Senate. Only the secretary of defense, however, sits on the president’s cabinet and on the National Security Council.

SOCIAL POLICY


The preamble to the Constitution states that We the People of the United States, in Order to create a more perfect Union, establish Justice, promote the general Welfare, do ordain and establish this Constitution Social policy is set with this important charge in mind.

The interpretation of the government’s responsibility for the welfare of its citizens has changed over time and remains controversial today. The government currently assumes major responsibilities in three key social policy areas: health care, welfare, and education.



Health Care

Health care is controversial today concerning the issue of a national health insurance program. In 1993 Congress defeated President Bill Clinton’s proposed plan to provide all citizens with basic insurance coverage for doctor fees, hospitalization, and prescription drugs. On the other hand, most people accept government’s role in medical research and regulating food and drugs. The Public Health Service researches, gathers information, and monitors health care. The Food and Drug Administration regulates the labeling and processing of most foods, drugs, and cosmetics. The Center for Disease Control gained a new importance during the 2001 Anthrax scare following the September 11 attacks on the World Trade Towers and the Pentagon.

Welfare

To many Americans, the phrase welfare right out of the preamble to the Constitution - often conjures images of irresponsible recipients who take welfare payments from the government instead of working. In truth, most Americans during their lifetimes will be the recipients of government welfare. The most extensive single welfare program is Social Security, a social insurance plan for the elderly, poor, and disabled. Employees and employers contribute to a fund through payroll taxes, and virtually everyone who contributes for at least ten years is eligible for payments. Most Americans support the program as long as it’s called Social Security, and not welfare. Other public assistance programs include Medicare, Medicaid, Aid to Families with Dependent Children, and food stamps.



Education

Public education is generally regarded as the responsibility of states and local communities, so the federal government’s role in this area is limited. Today most federal funds go to higher education, primarily in the form of student loans and grants. Since the 1950s the federal government has provided funds for public education grades 1-12, particularly for programs to upgrade science, language, and mathematics. Other programs, such as Head Start for preschoolers, focus on helping underprivileged children. However, the federal government today funds less than 10 percent of the total amount spent on education in the United States. A recent initiative by President George W. Bush is Leave No Child Behind, a comprehensive program that sets standards and schedules for testing, curriculum, and teacher qualifications. The program has been controversial, partly because it has imposed unfunded mandates on the states.



REGULATORY POLICY

The U.S. government first began regulating individuals, businesses, and its own agencies during the late 1800s. Since then, the government’s regulatory role has grown rapidly, so that today most activities are regulated in some way by the federal government. Important regulatory activities of the government include:

        Regulating business. The national government began regulating business in the late 1800s in order to eliminate monopolies, businesses that have exclusive control of an industry. Government now regulates a wide array of business practices, including elimination of competition and fraudulent product offerings.

        Regulating labor. Labor regulations became a major focus of the government during the 1930s. Then as now, most labor policies have been made to protect the American worker. The government has promoted equal employment opportunities, safe and sanitary workplace standards, and fair bargaining practices between employer and workers.

        Regulating energy and the environment. Energy policies are coordinated by the Department of Energy, created in the late 1970s in the wake of worldwide oil and gas shortages. A major concern of energy policy makers is maintaining a supply of cheap energy that the country depends on for most of its activities. Many are alarmed by the country’s dependence on Middle-Eastern Oil, and others keep a watchful eye on depletion of U.S. natural resources and damage to the environment. Environmental policy, on the other hand is the responsibility of many different government departments and agencies. Especially important is the Environmental Protection Agency, which enforces policies on water and air pollution, pesticides, radiation, and waste disposal.

Many different people take part in setting U.S. public policy. Some groups that form close links to individual citizens participate in policy making, particularly interest groups, the media, and political parties. Within the government itself, all three branches have a say, and in any one area, policies are usually set by any number of people having input at many points in the process.



IMPORTANT DEFINITIONS AND IDENTIFICATIONS:  

Center for Disease Control

Central Intelligence Agency

containment

customs, duties, tariffs

deficit spending

deflation

diplomacy

entitlement programs

Environmental Protection Agency

estate taxes

excise taxes

Federal Reserve Board

Federal Reserve System

fiscal policy

Food and Drug Administration

Foreign Service

Head Start

inflation

isolationism foreign policy

Joint Chiefs of Staff

Keynesian economics

laissez-faire policy

Leave No Child Behind

monetary policy

monopolies

national debt

national Security Advisor

National Security Council

preemption

progressive tax

Public Health Service

regressive tax

social insurance taxes

Social Security




UNIT FIVE QUESTIONS

 


  1. Which economic policy was generally followed by the United States government until the twentieth century?

a)      laissez-faire

b)     detente

c)      Keynesian

d)     containment

e)      isolationism

 


  1. Which of the following is a basic principle behind Keynesian economic policy?

a)      The free market should operate without any intervention from government.

b)     A basic responsibility of government is to manage the economy.

c)      The government should own all major means of production and distribution in the economy.

d)     The government should allow a free market to operate whenever possible, but should be prepared to regulate when necessary.

e)      Government should set fiscal policy but not monetary policy.


  1. The largest single source of federal revenue today is

a)      individual income taxes

b)     corporate income taxes

c)      social insurance taxes

d)     borrowing

e)      estate taxes


  1. Which of the following is the largest category of government expense?

a)      entitlement programs

b)     national defense

c)      paying the national debt

d)     education

e)      foreign aid

 


  1. Which of the following organizations has the most control over federal monetary policy?

a)      the Department of the Treasury

b)     the Office of Management and the Budget

c)      the Congressional Budget Office

d)     the White House Office

e)      the Federal Reserve Board

 


  1. The foreign policy called containment is associated most directly with which era in American history?

a)      the early Republic

b)     the Civil War Era

c)      the era between World War I and World War II

d)     the Cold War

e)      the post-Soviet Union era

 


  1. Which organization or person is LEAST directly charged with setting United States foreign policy?

a)      the Department of Defense

b)     the State Department

c)      the President

d)     Congress

e)      The National Security Council

 


  1. The Cabinet-level official MOST directly responsible for setting military policy is the

a)      Secretary of State

b)     Attorney General

c)      Secretary of Defense

d)     Director of the CIA

e)      Director of the FBI

 


  1. All of the following individuals sits on the Joint Chiefs of Staff EXCEPT:

a)      the President’s Chief of Staff

b)     the Secretary of the Army

c)      the Secretary of the Navy

d)     the Secretary of the Air Force

e)      the commandant of the Marines

 


  1. Which of the following policy areas is the LEAST subject to federal regulation?

a)      public health

b)     business monopolies

c)      labor laws

d)     education

e)      protection of the environment

ANSWERS TO UNIT FIVE QUESTIONS

1. A

2. B


3. A

4. A


5. E

6. D


7. D

8. C


9. A

10. D


 

CHAPTER FIFTEEN - CIVIL LIBERTIES

A respect for civil liberties and civil rights is one of the most fundamental principles of the American political culture. The founders were very concerned with defining and protecting liberties and rights, and their efforts are reflected in the Declaration of Independence, the Constitution, and the Bill of Rights. Civil liberties and rights have continued to evolve through the years by means of additional amendments (particularly the Fourteenth), court decisions, and legislative actions.



THE DECLARATION OF INDEPENDENCE

"We hold these truths to be self-evident; that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. That, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

                                                                Thomas Jefferson, 1776

The Declaration clearly reflects the founders' belief that governments are responsible for protecting the "unalienable rights" of "life, liberty, and the pursuit of happiness." Since people are clearly capable of abusing the "natural rights" of others, the government must protect the rights of its citizens.


THE ORIGINAL CONSTITUTION


Most of the framers believed that the basic "natural rights" were guaranteed by the original Constitution before the Bill of Rights was added. Rights specifically mentioned in the body of the Constitution are:

  • writ of habeas corpus

  • no bills of attainder

  • no ex post facto laws

  • trial by jury in federal courts in criminal cases

  • protection as citizens move from one state to another

  • no titles of nobility

  • limits on punishment for and use of the crime of treason

  • no religious oaths for holding federal office

  • guarantee of republican government for all states

THE WRIT OF HABEAS CORPUS

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Article One, Section Nine

The Constitution of the United States



Habeas Corpus literally means "produce the body." The writ is a court order requiring government officials to present a prisoner in court and to explain to the judge why the person is being held. Suspension of habeas corpus is a right of Congress, since the passage above appears in Article One, which defines the powers of Congress.

Originally, the writ was only a court inquiry regarding the jurisdiction of the court that ordered the individual's confinement, but today it has developed into a remedy that a prisoner can formally request. A federal judge may order the jailer to show cause why the person is being held, and the judge may order the prisoner's immediate release.

The Supreme Court under Chief Justice Rehnquist has severely limited the use of habeas corpus partly because prisoners on death row have used it to delay their executions, sometimes for years. Supporters of habeas corpus believe that judges should be allowed to use their own judgment in issuing the writs because they are protecting constitutional rights.

EX POST FACTO LAWS AND BILLS OF ATTAINDER

The Constitution forbids both national and state governments from passing ex post facto laws. An ex post facto law is a retroactive criminal law that affects the accused individual negatively. Such laws may make an action a crime that was not a crime when committed, or they may increase punishment for a crime after it was committed. On the other hand, the restriction does not apply to penal laws that work in favor of the accused.



A bill of attainder is a legislative act that punishes an individual or group without judicial trial. The Constitution forbids them because the founders believed that it is the job of the Courts, not Congress, to decide that a person is guilty of a crime and then impose punishment

THE BILL OF RIGHTS

The overwhelming majority of court decisions that define American civil liberties are based on the Bill of Rights, the first ten amendments added to the Constitution in 1791.

Even though most of the state constitutions in 1787 included separate bills of rights for their citizens, the original Constitution mentioned only the rights listed above. These rights were scattered throughout the articles, with most of the attention focused on defining the powers of the branches of government, not on preserving individual rights. Many people were widely suspicious of these omissions, and in order to gain ratification, the founders agreed to add ten amendments in 1791, the Bill of Rights.


  • The First Amendment guarantees freedom of speech, press, assembly and petition. In addition, it prohibits Congress from establishing a national religion.

  • The Second Amendment allows the right to bear arms.

  • The Third Amendment prohibits the quartering of soldiers in any house.

  • The Fourth Amendment restricts searches and seizures ("the right of the people to be secure in their persons, houses, papers, and effects").

  • The Fifth Amendment provides for grand juries, restricts eminent domain (the right of the government to take private property for public use), and prohibits forced self-incrimination and double jeopardy (being tried twice for the same crime).

  • Amendment Six outlines criminal court procedures.

  • Amendment Seven guarantees trial of jury in civil cases that involve values as low as twenty dollars.

  • Amendment Eight prevent excessive bail and unusual punishment

  • The Ninth Amendment allows that Amendments 1-8 do not necessarily include all possible rights of the people.

  • The Tenth Amendment reserves for the states any powers not delegated to the national government specifically in the Constitution.

OTHER SOURCES OF CIVIL LIBERTIES AND CIVIL RIGHTS


The Constitution and the Bill of Rights form the basis of Americans values concerning civil liberties and civil rights, but they have been supplemented through the years by other amendments, court decisions, and legislative action.

THE FOURTEENTH AMENDMENT

Civil rights are also protected by the Fourteenth Amendment, with protects violation of rights and liberties by the state governments.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Amendment Fourteen, Section One

Although the Fourteenth Amendment was originally passed in the post-Civil War era specifically to protect the rights of ex-slaves, the famous Section One protects many citizens' rights from abuse by state governments Whereas the Bill of Rights literally applies only to the national government, the Fourteenth Amendment is intended to limit the actions of state governments as well. Section One includes:


  • a citizenship clause that protects "privileges and immunities"

  • a due process clause that prohibits abuse of "life, liberty, or property"

  • an equal protection clause that has been an important basis of the modern civil rights movement

One important consequence of the Fourteenth Amendment is the incorporation of the Bill of Rights to apply to the states. The Bill of Rights originally only limited the powers of the federal government. For example, in 1833 in Barron vs. Baltimore the U.S. Supreme Court ruled that the Bill of Rights did not apply to state laws. It was assumed that the states’ bills of rights would protect individuals from abuse by state laws. However, the 14th Amendment nationalized the nature of civil rights with this statement:

No State shall deprive any person of life, liberty, or property, without due process of law.

Incorporation happened gradually over time through individual court decisions that required states to protect most of the same liberties and rights that the Bill of Rights protects from federal abuse. These changes are reflected in numerous court decisions made between 1925 and 1969. Two examples of cases that reflect incorporation are:

        Gitlow v. New York (1925) ö Benjamin Gitlow was arrested and found guilty of breaking a New York state sedition act when he passed out pamphlets that supported socialism and overthrow of the government. Gitlow believed that his freedom of speech was violated, and the case was appealed to the Supreme Court Even though the Court did not declare the New York law unconstitutional, the majority opinion stated that fundamental personal rights were protected from infringement by states by the Due Process Clause of the Fourteenth Amendment.



  • Gideon v. Wainwright (1963) ö Clarence Gideon appealed the decision of a Florida court to send him to prison for breaking and entering a pool hall. He based his appeal on the right to counsel (guaranteed in the Sixth Amendment) ö because in the original trial he could not afford to hire a lawyer and was not provided one by the state court. The Supreme Court ruled in his favor, again applying the Due Process Clause of the Fourteenth Amendment to require states to provide counsel to anyone charged with a felony who was too poor to afford a lawyer.

COURT DECISIONS

The Supreme Court continues to shape the definition and application of civil rights and civil liberties. Although the court has always played an important role in the protection of civil rights and civil liberties, it has been particularly active in the modern era since about 1937. The Supreme Court sets precedents that influence legislation and subsequent court decisions. The Court's influence is based largely on judicial review, the power to judge the constitutionality of a law or government regulation.



LEGISL ATIVE ACTION

The Constitution, the Bill of Rights, and the Fourteenth Amendment protect individuals from actions of government, but court decisions and legislation protect individuals from discriminatory actions by private citizens and organizations. Legislative action is an essential component of the modern civil rights era, although the courts took the earliest initiatives.

The activist court of the 1960s set precedents that broadly construe the commerce clause, which gives Congress the power to regulate interstate and foreign commerce. As a result, through laws like the Civil Rights Act of 1964, the legislature has played a major role in combating discrimination.

The Constitution, the Bill of Rights, the Fourteenth Amendment, Supreme Court decisions, and legislative actions all define the nature of civil rights and civil liberties in American society, but issues arise which constantly cause reinterpretations of the sources. Conflicts arise largely because issues often involve one citizen's or group's rights versus another's.



FIRST AMENDMENT LIBERTIES

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment

           The Constitution of the United States

The First Amendment protects several basic liberties: freedom of religion, speech, press, petition, and assembly. Interpretation of the amendment is far from easy, as court case after court case has tried to define the limits of these freedoms. The definitions have evolved throughout American history, and the process continues today.

FREEDOM OF RELIGION


The 1st Amendment protects freedom of religion in two separate clauses: the establishment clause, which prohibits the government from establishing an official church, and the free exercise clause that allows people to worship as they please. Surprisingly, the First Amendment does not refer specifically to the "separation of church and state" or a "wall of separation." Those phrases evolved later, probably from letters written by Thomas Jefferson, but the First Amendment does prohibit the establishment of a government sponsored religion, such as the Anglican Church in England.

The Establishment Clause

The Everson v. Board of Education case in 1947 challenged a New Jersey town for reimbursing parents for the cost of transporting students to school, including local parochial schools. The plaintiffs claimed that since the parochial schools were religious, publicly financed transportation costs could not be provided for parochial students. The challenge was based on the establishment clause. The court in this case ruled against the plaintiffs, claiming that busing is a "religiously neutral" activity, and that the reimbursements were appropriate. However, the majority opinion declared that states cannot support one religion above another.

Aid to church-related schools has been a topic at issue with the establishment clause. In 1971 in Lemon v. Kurtzman, the Supreme Court ruled that direct state aid could not be used to subsidize religious instruction. The Court’s opinion stated that government aid to religious schools had to be secular in aim, and that an excessive government entanglement with religion should be avoided. However, in recent years the Court has relaxes restrictions on government aid to religious schools. For example, in 1997 the Supreme Court overturned Aquilar v. Felton, a 1985 decision that ruled unconstitutional state aid for disadvantaged students who attend religious schools.

A current establishment clause issue is that of school vouchers that allow individuals to purchase education at any school, public or private. School districts in several states, including Florida, Ohio, and Wisconsin, have experimented with voucher programs. In 2002 the Supreme Court held that the Cleveland voucher system was constitutional, although almost all the students used the vouchers to attend religious schools.

The most controversial issue of the separation of church and state has been school prayer. The first major case was Engle v. Vitale (1962). In this case, the Court banned the use of a prayer written by the New York State Board of Regents. It read, Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country. Later decisions overturned laws requiring the saying of the Lord’s Prayer and the posting of the Ten Commandments in classrooms. In 1985, Wallace v. Jaffree banned Alabama’s moment of silence law that provided for a one-minute period of silence for meditation or voluntary prayer.

In recent years prayer outside the classroom has become an issue, with student initiated prayer at graduation ceremonies and sports events at its focus. In 2000 the Supreme Court affirmed a lower court ruling that school prayer at graduation did not violate the establishment clause, but that prayer over loud speakers at sports events did.



The Free Exercise Clause

The free exercise clause does not allow any laws prohibiting the free exercise of religion. The courts have interpreted the 14th Amendment to extend the freedom to protection from state governments as well. Religions sometimes require actions that violate the rights of others or forbid actions that society thinks are necessary. The Supreme Court has never allowed religious freedom to be an excuse for any type of behavior. It has consistently ruled that people have the absolute right to believe what they want, but not necessarily the right to religious practices that may harm society.

Some outlawed practices have been polygamy, the use of poisonous snakes in religious rites, and prohibiting medical treatment to children based on religious beliefs. On the other hand, Courts have disallowed some government restrictions of religious exercise, such as forcing flag salutes and requiring Amish parents to send their children to school after eighth grade.

FREEDOM OF SPEECH


Citizens of modern America almost take for granted the responsibility of the government to guarantee freedom of speech. In reality, the definition of freedom of speech has changed dramatically over the years, with an ever-increasing emphasis on protection of free speech, often at the expense of other liberties and rights. Until recently, especially during times of war and crisis when national security is at stake, the government has passed laws that control free speech.

Free Speech v. National Security

Early in United States history the government almost certainly did not put high priority on the government's responsibility to protect freedom of speech. John Adams, when faced with an international crisis that threatened war with France, saw that Congress passed the Sedition Act of 1798, making it a crime to write, utter, or publish anti-government statements with the "intent to defame." The Federalists, who favored strong government authority and emphasized order at the expense of liberty, believed that the First Amendment did not forbid punishing newspapers for libel. The Anti-Federalists did NOT argue that the press should be free of government controls; they protested the act on the grounds that state, not federal government should have control. Thomas Jefferson, a prominent Anti-Federalist, allowed the twenty-year limitation of the Act to run out during his presidency, and the Act died during peace time with little protest.

Presidents, such as Abraham Lincoln during the Civil War, continued to support the government's right to restrict freedom of speech during national security crises through the 19th century and into the 20th. During World War I, the U.S. Congress passed two controversial laws that restricted freedom of speech: The Espionage Act of 1917 and the Sedition Act of 1918.

The Espionage Act of 1917 forbid false statements that intended to interfere with the U.S. military forces or materials to be mailed if they violated the law or advocated resistance to government The Sedition Act of 1918 forbid individuals to utter, print, write or publish language intended to incite resistance to the U.S. government. Under the mandate of the Sedition Act, thousands were arrested and convicted, and some were deported from the country.

The most famous Supreme Court case that resulted from the World War I restrictions was Schenck v. U.S. Charles Schenck, a socialist who mailed circulars to young men urging them to resist the military draft, was convicted of violating the Espionage Act. The Supreme Court upheld his conviction, with Oliver Wendell Holmes writing the precedent-setting opinion that any language that directly caused an illegal act was not protected by the First Amendment. Holmes distinguished between language that was merely critical of the government and that which was directly a "clear and present danger" to national security. The "clear and present danger" test became a standard by which to balance national security and freedom of speech.

Even before the U.S. entered World War II, Congress passed the Smith Act, intending to protect the country from the influence of Nazism and Communism. The Act contained two clauses:



  • punishment for willfully advocating the overthrow of the government

  • punishment for membership in a group that advocated the overthrow of government ( the membership clause)

A few cases were tried for wartime behavior, but the real impact of the Smith Act came after World War II was over with the fear of Communist espionage in the Red Scare, or McCarthyism. The U.S. experienced a dramatic reaction to the Cold War, fueled by the fear that communists were infiltrating the U.S. government and passed security secrets to the Russians. The Internal Security Act of 1950 required Communist organizations to register and to publish membership lists. Many were questioned by Congressional Committees and many were arrested.

By the late 1950s, with McCarthyism subsided and a new Supreme Court under the direction of Earl Warren, the Court leaned more and more toward freedom of speech. No laws were passed restricting speech during the Vietnam War, and the Brandenburg v. Ohio case established that speech would have to be judged as inciting "imminent" unlawful action in order to be restricted. The case involved a Ku Klux Klan leader convicted of attempting to incite mob action when he said "We'll take the (expletive deleted) street later." The conviction was overturned by the Supreme Court because Brandenburg did not call for an "imminent" action.



Restrictions on Free Speech

Today, the following forms of speaking and writing are not granted full constitutional protection

1)      Libel, a written statement that attacks another person's character, is not automatically protected, although it is very hard to sue for libel. Public figures must prove that a statement is not only false but that it intended "actual malice," a condition that is very hard to define.

2)      Obscenity is not protected, but the Court has always had a difficult time defining obscenity. The current Court leaves local governments to decide restrictions for hard-core pornography, but of they choose to restrict it, they must meet some strict constitutional tests. One common reaction has been for a local government to establish areas where pornography can and can't be sold. A new issue concerns pornography on the internet. In 1997 the Supreme Court ruled the Communications Decency Act unconstitutional because it infringed too much on free speech.

3)      Symbolic speech, an action meant to convey a political message, is not protected because to protect it would be to allow many illegal actions, such as murder or rape, if an individual meant to send a message through the action. The Court made an exception to the action of flag-burning in Texas v. Johnson (1989), when it declared that the Texas law prohibiting flag desecration was unconstitutional. Since flag-burning has no other intent than to convey a message, the Court has ruled that it does not incite illegal actions. Symbolic speech includes advocacy of illegal actions, as well as "fighting words," or inciting others to commit illegal actions. However, in 2003 the Supreme Court ruled that a Virginia law that prohibited the burning of a cross with an intent to intimidate did not violate the First Amendment. The Court reasoned that a burning cross is an instrument of racial terror so threatening that it overshadows free speech concerns.

PRIVACY RIGHTS

The phrase "right to privacy" does not appear anywhere in the Constitution or the Bill of Rights. The idea was first expressed in the 1965 Griswold v. Connecticut case in which a doctor and family-planning specialist were arrested for disseminating birth control devices under a little-used Connecticut law that forbid the use of contraceptives. The Supreme Court ruled against the state, with the majority opinion identifying "penumbras" - unstated liberties implied by the stated rights - that protected a right to privacy, including a right to family planning.

The most important application of privacy rights came in the area of abortion as first ruled by the Court in Roe v. Wade in 1973. Jane Roe (whose real name was Norma McCorvey) challenged the Texas law allowing abortion only to save the life of a mother. Texas argued that a state has the power to regulate abortions, but the state overruled, forbidding any state control of abortions during the first three months of a pregnancy and limiting state control during the fourth through sixth months. The justices cited the right to privacy as the liberty to choose to have an abortion before the baby was viable. The Roe v. Wade decision sparked the controversy that surrounds abortion today.

Since the late 1980s the Supreme Court has tended to rule more conservatively on abortion rights. For example, in Webster v. Reproductive Health Services (1989) the Court upheld a Missouri statue that banned the use taxpayer-supported facilities for performing abortions. In 1992, the Court upheld a Pennsylvania law that required pre-abortion counseling, a waiting period of twenty-four hours, and for girls under eighteen, parental or judicial permission. In 2000 the court reviewed a Nebraska act that banned partial birth abortion, a procedure that could only take place during the second trimester of a pregnancy. The Court declared the act unconstitutional because it could be used to ban other abortion procedures. The majority opinion also noted that the law did not include protection of the health of the pregnant women. In 2003, the U.S. congress passed a national law similar to the Nebraska act, and it was immediately challenged in court.


RIGHTS OF DUE PROCESS

The due process clauses in the Fifth and Fourteenth Amendment forbid the national and state governments to "deny any person life, liberty, or property without due process of law." Although the Supreme Court has refused to define precisely what is meant by due process, it generally requires a procedure that gives an individual a fair hearing or formal trial. Although due process is most often associated with the rights of those accused of crimes, it is required for protecting property rights as well.

PROPERTY RIGHTS

The founders saw the government as not only the protector of property but also the potential abuser of property rights.

The Fifth Amendment allows the government the right to eminent domain (the power to claim private property for public use), but the owner must be fairly compensated. The Court has interpreted this clause to be a direct taking of property, not just a government action that may result in a property losing value, such as a rezoning regulation. Also, the government and the property owner sometimes interpret "just compensation" differently. In such a case, the courts are the final arbitrators.

THE FOURTH AMENDMENT AND SEARCH AND SEIZURE

Freedom from unreasonable search and seizure is guaranteed by the Fourth Amendment. To prevent abuse by police, the Constitution requires that searches of private property are permissible only if probable cause exists that indicates that a crime may have taken place.

An important limitation was set on police searches by Mapp v. Ohio, a 1961 case in which the police broke into the home of Dollree Mapp, a woman under suspicion for illegal gambling activities. Instead, they found obscene materials and arrested Mapp for possessing them. She appealed her case, claiming that the Fourth Amendment should be applied to state and local governments, and that the evidence had been seized illegally. The police, she claimed, had no probable cause for suspecting her for the crime she was arrested for. The court ruled in her favor, thus redefining the rights of the accused.

FIFTH AMENDMENT RIGHTS

The Fifth Amendment forbids self-incrimination, stating that no one "shall be compelled to be a witness against himself." The rights for protection against self-incrimination originated from a famous 1966 Court decision Miranda v. Arizona. Ernesto Miranda was arrested as a prime suspect in the rape and kidnapping of an eighteen year old girl. During a two hour questioning by the police, he was not advised of his constitutional right against self-incrimination nor his right to counsel. His responses led to his conviction, but the Supreme Court reversed it, and set the modern Miranda Rights: to remain silent, to be warned that responses may be used in a court of law, and to have a lawyer present during questioning.

A very important principle related to both the 4th and 5th Amendments is the exclusionary rule, which upholds the principle that evidence gathered illegally cannot be used in a trial. Critics of the exclusionary rule, including Chief Justice William Rehnquist, express doubts that criminals should go free just because of mistakes on the part of the police. However, the Courts continue to apply the exclusionary rule.

THE EIGHTH AMENDMENT AND CRUEL AND UNUSUAL PUNISHMENT

The 8th amendment prohibits cruel and unusual punishments, a concept rooted in English law. By far, the most controversial issue that centers on the 8th Amendment is capital punishment, or the practice of issuing death sentences to those convicted of major crimes.

In general, states are allowed to pursue their own policies regarding capital punishment. The Supreme Court did not challenge the death penalty until 1972 in Furman v. Georgia.

Even then, it did not judge capital punishment to be cruel and unusual punishment. It simply warned the states that the death penalty was to be carried out in a fair and consistent way.



RIGHT VS. RIGHT

Most of us think of civil rights and liberties as principles that protect freedoms for all of us all the time. However, the truth is that rights listed in the Constitution and the Bill of Rights are usually competing rights. Most civil liberties and rights court cases involve the plaintiff’s right vs. another right that the defendant claims has been violated. For example, in 1971, the New York Times published the Pentagon Papers that revealed some negative actions of the government during the Vietnam War. The government sued the newspaper, claiming that the reports endangered national security. The New York Times countered with the argument that the public had the right to know and that its freedom of the press should be upheld. So, the situation was national security v. freedom of the press. A tough call, but the Court chose to uphold the rights of The Times.


IMPORTANT DEFINITIONS AND IDENTIFICATIONS:

Aquilar v. Felton

Barron vs. Baltimore

Bills of attainder

Bill of rights

Brandenberg. V. Ohio

Clear and present danger test

Cruel and unusual punishment

Due process clause of the 5th and 14th Amendments

Eminent domain

Engle v. Vitale

Equal protect clause

Espionage Act of 1917

Establishment clause

Everson v. Board of Education

Ex post facto laws

Exclusionary rule

First Amendment rights

Fourteenth Amendment

Furman v. Georgia

Free exercise clause

Gideon V. Wainwright

Griswold v. Connecticut

Habeas corpus

Imminent action

Lemon v. Kurtzman

Mapp v. Ohio

Miranda v. Arizona

Miranda Rights

Moment of silence

Privileges and immunities clause

Right to counsel

Right to privacy

Roe v. Wade

Schenck v. U.S.

school vouchers

Sedition Act of 1798

Sedition Act of 1918

Smith Act

Symbolic speech

Texas v. Johnson

Unreasonable search and seizure




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