The Constitution



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Foreign Policy

The Constitution's ambiguous definition of the foreign policy powers of the president and Congress invites conflict. For example: The president is the commander in chief, but Congress appropriates money for foreign and military operations. The president appoints ambassadors, but the Senate confirms them. The president negotiates treaties, but the Senate must ratify them with a two-thirds vote. Although Americans often think the president is in charge of foreign policy, only Congress can regulate commerce with other nations and declare war. Presidents seem to have great power when they deploy American troops or engage in international diplomacy. Critics of a president's policies have referred to the "imperial presidency" - the tendency for the president to act unilaterally in foreign affairs. By the standards of others nations, however, the ability of an American president to act decisively often appears modest.

The Supreme Court has ruled that the federal government has foreign policy powers beyond those specifically mentioned in the Constitution. The Court has been reluctant to intervene in disputes between the president and Congress over war powers. Therefore the actions taken by presidents during wartime that have struck many as unconstitutional have generally been allowed by the Court (for example, Japanese-American relocation camps during World War II).

Congress tried to limit the president's control of the use of military force by passing the War Powers Act in 1973. It contained a couple of important provisions: 1. The president must report all commitments of troops in hostile situations within forty-eight hours. 2. The president may make only a sixty-day commitment of troops, unless there is a declaration of Congressional approval. The War Powers Act has had very little influence on American military actions. Every president since its passage has sent troops abroad without congressional approval. Presidents believe the act is unconstitutional. Furthermore, Congress has been reluctant to cut off appropriations for popular military actions. One other check that Congress has on the president's foreign policy powers is oversight of intelligence committees. House and Senate intelligence committees must be fully informed of all intelligence activities, including any covert operations. Committees have no authority to disapprove of any covert actions, but Congress as a whole has attempted to block covert actions (for example, military aid to the Nicaraguan contras). .

The United States emerged from World War II as the most powerful country in the world, and this status has created several consequences. The president has become more involved in foreign affairs, and the size of the government has expanded considerably. More agencies are needed to shape foreign policy, not just the State Department, which had traditionally fulfilled this role. Most of the agencies that now influence foreign affairs owe no political or bureaucratic loyalty to the State Department. The National Security Council (NSC) was created to coordinate all departments and agencies that playa role in foreign policy. The NSC is chaired by the president and includes the vice president and the secretaries of state and defense. The director of the Central Intelligence Agency (CIA), the chairman of the Joint Chiefs of Staff, and the attorney general are usually included as well. The national security adviser heads the staff of the NSC. The goal of the staff is to present various perspectives, facilitate presidential decision-making, and implement presidential decisions. The NSC has grown in influence since the 1960s, and the national security adviser often rivals the secretary of state in influencing policy.

The general public is often poorly informed about foreign policy. Therefore the views of the political elites tend to dominate opinions on foreign affairs. Four worldviews have dominated the political elites since the 1920s: 1. Isolationism - During the 1920s and 1930s, most elites were opposed to getting involved in wars. This view was adopted after World War I because the war accomplished little while causing many American deaths. 2. Containment - Pearl Harbor ended isolationist views for most in the United States. After the success of World War II, most elites reacted strongly to the mistake of appeasing Hitler before the war. Postwar policy centered on resisting Soviet expansionism. 3. Disengagement - As a reaction to the failures in Vietnam during the 1960s and 1970s, many political elites sought disengagement from heavy American involvement in international affairs. This was a new isolationism. 4. Human rights The 1990s brought the view that the nation's foreign policy must assure human rights internationally. In particular, the prevention of genocide has become a foreign policy goal because of the mass murders in Bosnia during the 1990s. However the policy has been applied unevenly, as African genocides persist. A different post-Cold War view seemed to be driving the Bush administration as it responded to the 9/11 attacks. This included policies that advocated unilateral and pre-emptive actions to protect the United States and its allies.

There are two prevailing views regarding military expenditures. Some see military spending as an example of majoritarian politics-every taxpayer pays for military expenditures, but everyone also receives protection. Others view military spending as an example of client politics-every taxpayer pays, but it is the generals, defense contractors, and members of military-industrial complex that benefit. Those who see the military as a bastion of client politics cite many controversies and inconsistencies within the military and its budget' that spring from self-interest: For example, the purchase of "big-ticket items," such as submarines, airplanes, or missiles, has led to enormous cost overruns. The main reasons for these include unpredictability of cost, the tendency of contractors to underestimate cost, the desire for the best weaponry (termed gold plating), a lack of competitive bids, and the stretching out of production deadlines by Congress over several years.

The formal structure for military decision-making has in large part been created since World War II. The structure reflects some concerns that go back to the time of the Founders, particularly the desire to ensure civilian control over the military. The president is commander in chief under the Constitution. The chain of command runs from him to the secretary of defense and then to the various unified and specified commands of each service. The Joint Chiefs of Staff (JCS) is composed of the uniformed heads of each service of the military. The JCS chair .and vice chair are appointed by the president and confirmed by the Senate. The JCS does not have command authority over troops, but it does playa key role in defense planning. .


Civil Liberties

The Framers of the Constitution had three objectives in regards to civil liberties. First, they wanted to limit federal powers and assure the rights and liberties found in the various state constitutions. Second, they meant for the Constitution to be a document proclaiming what the federal government could do, not what it could not do. Third, any mention of what the government could not do was meant to apply only to the federal government, not to the state governments. Civil liberties have created major issues in the nation's history for three reasons: 1. The Bill of Rights contains competing rights. Often the rights of one group or individual directly conflict with the rights of another. The right of a group to protest may be in conflict with the right of citizens to have public order. 2. Government officials have often been successful at taking action against the rights of political or religious dissidents. In times of crisis, politicians can convince the public that the liberty of a minority needs to be restricted. For instance congressional acts were passed during World War I that made it a crime to utter statements that would interfere with the draft. During the Cold War a law required members of the Communist party to register with the government. 3. Waves of immigrants who are not white and Western European have created cultural conflicts. Conflicts continue to exist about the meaning of constitutionally protected freedoms based on ethnic, cultural, or religious factors. For instance, Jews have been offended by creches at Christmastime on government property, while some English-speakers press for monolingual schools in Spanish-speaking areas.

Many conflicts have been over the First Amendment. American legal thought set forth the idea that the press should be free of prior restraint-government censorship of the press in advance of publication-even if publication is clearly against the interests or security of the government. The press, however, had to accept the consequence if what was published was inaccurate or illegal. During World War I, Congress defined further some of the limits of expression by passing legislation stating that treason, insurrection, forcible resistance to federal laws, and encouraging disloyalty in the armed services were not protected by the First Amendment. The Supreme Court (in Schenck) upheld these limits on free expression in 1919 by issuing the "clear-and-present danger" test: the words used cannot create a clear and present danger to the public, and Congress can prevent such dangers. Later the Court moved towards allowing more freedom of expression but deferred to Congress during times of crisis. For instance, under the Smith Act of 1940, the Court upheld the convictions of communists preaching revolution. In 1969, however, the Court ruled that speech calling for illegal acts is protected if those acts are not imminent. In 1977 an American Nazi march in Skokie, Illinois, an area heavily populated by Jews, was held to be lawful. The general view of the Court has been that hate speech is permissible, but not hate crimes.

The Fourteenth Amendment (1868) created the possibility that some or all of the Bill of Rights might restrict state government actions based on the amendment's "due-process clause." The Supreme Court initially denied making the Bill of Rights applicable to the states. However, in Gitlow v. New York (1925), the Court argued for the first time that fundamental personal rights are protected from infringement by the states because of the due process clause. Most, though not all, of the Bill of Rights has been incorporated into the states since 1925.


Some kinds of speech are not fully protected by the First Amendment: Libel (a written statement defaming another with false information) and slander (a defamatory oral statement) have drawn variable jury awards. The burden of proof in libel and slander cases tends to be higher for public figures because they must also show the words were written with actual malice, with reckless disregard for the truth, and with knowledge that the words were false. Concerning obscenity, a 1973 definition allowed contemporary community standards to determine what is obscene. The same ruling created a standard for obscenity based on whether the material in question had "serious literary, artistic, political, or scientific value." Pornography on television, video, and the Internet has strained the community standard ruling, and regulation of these has generally been ruled unconstitutional. Symbolic speech, or expression through acts rather than words, is not protected when it involves an illegal act (for example, burning a draft card). Symbolic speech is generally protected when no illegal act is involved. For instance, flag burning has been ruled protected speech, by the Court, in a 1990 ruling.

Church and state Religious rights in the First Amendment are protected by two different clauses: 1. The free-exercise clause -The government cannot interfere with an individual's practice of religion. Furthermore, the law may not impose special burdens on religion. Yet there are no religious exemptions from a law binding all other citizens, even if that law oppresses one's religious beliefs. Some conflict between religious freedom and public policy continues to be problematic, such as conscientious objectors to military service and refusal to work on Saturdays. 2. The establishment clause - The Supreme Court has traditionally interpreted the establishment clause to mean no government involvement in religion, even if the involvement is not preferential. Yet some kinds of government aid to parochial schools and denominational colleges have been allowed. Aid is allowed if it involves a secular purpose, has an impact that neither advances nor inhibits religion, and does not create" excessive government entanglement with religion." (The Lemon Test) Supreme Court rulings remain complex and shifting in regard to the establishment clause.

The Bill of Rights offers several civil liberties that protect the accused. Evidence gathered in violation of the Constitution cannot be used in trials; this is referred to as the exclusionary rule. The exclusionary rule is derived from both the Fourth Amendment (freedom from unreasonable searches and seizures) and the Fifth Amendment (protection against self incrimination). In Mapp v. Ohio (1961), the Supreme Court ruled that the exclusionary rule applies to the states as well as the federal government. Reasonable searches of individuals can be made only with a properly obtained search warrant, issued when a judge determines that the police have good reason-probable cause-to believe that a crime has been committed and that the evidence bearing on that crime will be found at a certain location. In addition an individual can be searched if that search occurs in the process of a lawful arrest. In general the police can search the individual being arrested, items in plain view, and items under the immediate control of the individual. Concern for public safety can justify mandatory drug testing, even without a search warrant or individualized suspicion. Lacking the threat to public safety, however, the Supreme Court has been skeptical about drug testing. The constitutional ban on confessions and self-incrimination was originally intended to prevent torture or coercion. These rights were extended in the 1960s. Miranda v. Arizona (1966) set guidelines for police questioning the accused by forcing officers to read suspects their rights. These were designed to protect the accused against self incrimination and to protect their right to counsel.

After Sept. 11 2001, Congress passed the Patriot Act, designed to increase federal powers in investigating terrorists. It included these provisions: The government may: tap any telephone used by a suspect after receiving a court order, tap Internet connections with a court order and seize voicemail with a court order. Any noncitizen may be held as a security risk for seven days, or longer if certified to be a security risk. The federal government may track money across U.S. borders and among banks. The statute of limitations on terrorist crimes is eliminated, with increased penalties. An executive order then proclaimed a national emergency so that any noncitizen believed to be a terrorist or to have harbored a terrorist would be tried by a military court. A military court operates with the following provisions: The Patriot Act continues to raise issues regarding terrorism and civil liberties. The ability to tap phones and Internet connections is an expansion of police powers that many feel is dangerous and could lead to invasions of privacy against citizens who have no terrorist ties. Government investigations into phone, Internet, voice mail, and even library records can be conducted in secrecy without the knowledge of the person being investigated. Many civil libertarians feel this is a violation of due process of law.



Civil Rights

Two main reasons account for the slow pace with which African Americans attained their civil rights. First, politically dominant white minorities in the South feared potential competition for jobs, land, public services, and living space from African Americans. White groups were able to dominate local politics and keep African Americans from organizing politically. Second, the white majority at the national level opposed African American attempts to achieve rights and did not favor federal action to secure those rights. Progress in achieving civil rights for African Americans depended on either finding more white allies or shifting to new policy-making arenas. They moved their legal and political struggle from Congress to the federal courts.

The Fourteenth Amendment, adopted in 1868, seemed to guarantee equal rights for all. Yet a narrow interpretation of the amendment argued that African Americans had equal legal rights but could otherwise be treated differently than whites. The Supreme Court adopted this narrow view in Plessy v. Ferguson (1896), in which it found separate-but-equal facilities to be constitutional. The National Association for the Advancement of Colored People (NAACP) was established in 1909 to lobby in Washington and publicize black grievances, but its most influential role was played in the courtroom. In a series of court cases that stretched from 1938 to 1954, the NAACP implemented its strategy, culminating in Brown v. Board of Education (1954). In the Brown case the Supreme Court ruled that separate schools were inherently unequal and overturned Plessy in a unanimous decision. Brown was a landmark decision, and the reasons for it and the means chosen to implement it were important and controversial.

Three issues emerged from the decision: 1. Implementation The Brown case was a class action suit that applied to all similarly situated African American students. The Court later ruled that integration should proceed in public schools "with all deliberate speed." In the South, this turned out to be a snail's pace. In the late 1950s and early 1960s, the National Guard and regular army paratroopers were used to escort black students into formerly all-white schools and universities. 2. Rationale The decision in Brown argued that segregation was detrimental to African American students, creating a sense of inferiority. The Court relied on the findings of social science. 3. Desegregation versus integration In the South segregation by law (de jure segregation) was clearly unconstitutional as a result of Brown. In the North segregation was the result of residential segregation (de facto segregation). Integration came to be defined by the Court as a "unitary, nonracial system of education." The case of Swann v. Charlotte-Mecklenburg Board of Education (1971) set guidelines for all subsequent cases involving school integration: To violate the Constitution, a school system must have intended to discriminate. A one-race school creates a presumption of intent to discriminate. Remedies for past discrimination can include quotas, busing, and redrawn district lines. Not every school must reflect the racial composition of the entire system. The result of the Swann decision was often "white flight" to the suburbs. One issue not settled by Swann was whether busing and other remedies should cut across school district lines. Communities can not be forced to bus between district lines.

Getting Congress to pass new civil rights laws required a far more difficult and decentralized strategy than campaigning in the federal courts. This part of the movement aimed at mobilizing public opinion and overcoming the many congressional barriers to action. The first strategy was to get civil rights issues on the political agenda by mobilizing public opinion through dramatic events. This mobilization of public opinion had mixed results. It succeeded in getting civil rights on the national political agenda. Yet it set back coalition-building because demonstrations and riots were seen as law breaking by many whites. In Congress opponents of civil rights had strong defensive positions. Southern Democrats controlled the Senate Judiciary Committee. A southerner controlled the House Rules Committee. A filibuster in the Senate occurred when civil rights legislation came to the floor.

The 1964 election was a Democratic landslide that allowed northern Democrats to seize power in Congress. Five important civil rights bills were passed between 1957 and 1968. Significant voting rights laws were passed in 1957, 1960, and 1965. A housing discrimination law was passed in 1968. The nigh point of civil rights legislation, however, was the Civil Rights Act of 1964. It assured equality of opportunity in employment public accommodations, voting, and schools.

The feminist movement that reappeared in the 1960s questioned the claim that women differed from men in ways that justified differences in legal status. Congress responded by passing laws that required equal pay for equal work, prohibited discrimination on the basis of sex in employment and public education, and banned discrimination against pregnant women on the job. The Supreme Court had a choice between two standards in considering sex discrimination. The first is the reasonableness standard, which holds that when the government treats some classes of people differently from others, the different treatment must be reasonable and not arbitrary. The second is the strict scrutiny standard, which holds that some instances of drawing distinctions between different groups are inherently suspect. This is the standard used for racial discrimination. Thus the Court will subject those cases to strict scrutiny to ensure that they are clearly necessary to attain a legitimate state goal.

When women complained that some laws treated them unfairly, the Court adopted a mid-level standard somewhere between the reasonable and strict scrutiny tests. For example, the courts prohibit gender-based differences when applied to the age of adulthood, the drinking age, arbitrary employee height and weight requirements, and mandatory pregnancy leaves. Gender-based differences are allowed by the courts in areas such as statutory rape, all-boy/all-girl public schools, and delayed promotions in the Navy. The rights of women have been determined in three far-reaching areas: the draft, sexual harassment, and abortion.

The issue of abortion was left to the states until 1973, when the Supreme Court used Roe v. Wade to strike down a Texas ban on abortion and all similar state laws. It holds that a woman's. freedom to choose an abortion is protected by the Fourteenth Amendment in the first trimester of pregnancy. Abortion during the second trimester is also left up to a woman, but states are allowed to pass reasonable regulations to protect the mother's health. During the third trimester, states can ban abortion because the fetus is viable. Constitutional amendments to overturn Roe have failed. However, there have been successful attempts to restrict abortions:

1976: Congress barred the use of federal funds to pay for abortions except when the life of the mother is at stake. 1989: The Supreme Court first upheld the right of states to impose some restrictions on abortion. 1992: In Casey v. Planned Parenthood the Court permitted more restrictions, such as a twenty-four-hour waiting period and parental consent for teenagers. A spousal consent requirement was overturned. A recent decision banned "partial birth" abortion procedures.

The politics of civil rights are often expressed in one of two views. The first view advocates equality of results. In this view the assumption is that racism and sexism can be overcome only when remedies change the results. Proponents of this view argue that affirmative action-preferential practices-should be used in hiring and college admissions decisions. The second view advocates equality of opportunities. Proponents believe that reverse discrimination occurs when race or sex is used as a basis for preferential treatment. Laws should be color-blind and sex neutral. In the Bakke case of 1978, the Supreme Court ruled that numerical minority quotas are not permissible but that race could be considered in admissions policies. In general the Court supports the concept of affirmative action, but it is reluctant to support the use of quotas. Standards are emerging for quotas and preference systems. They include the following: 1. Quota systems are subjected to strict scrutiny, and there must be a compelling state interest to justify quotas. 2. Quotas must correct an actual pattern of discrimination. Federal quotas will be given deference because the Constitution gives Congress greater power to correct the effects of racial discrimination. 3. Preferences are acceptable for the purpose of achieving diversity.

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