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Libertarianism and Objectivism – Wikipedia, the free …

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Nov 032015

Ayn Rand’s philosophy of Objectivism has been and continues to be a major influence on the libertarian movement, particularly in the United States. Many libertarians justify their political views using aspects of Objectivism.[1] However, the views of Rand and her philosophy among prominent libertarians are mixed and many Objectivists are hostile to non-Objectivist libertarians in general.[2]

Some libertarians, including Murray Rothbard and Walter Block, hold the view that the non-aggression principle is an irreducible concept: it is not the logical result of any given ethical philosophy but, rather, is self-evident as any other axiom is. Rand, too, argued that liberty was a precondition of virtuous conduct,[3] but argued that her non-aggression principle itself derived from a complex set of previous knowledge and values. For this reason, Objectivists refer to the non-aggression principle as such, while libertarians who agree with Rothbard’s argument call it “the non-aggression axiom.” Rothbard and other anarcho-capitalists hold that government requires non-voluntary taxation to function and that in all known historical cases, the state was established by force rather than social contract.[4] They thus consider the establishment and maintenance of the night-watchman state supported by Objectivists to be in violation of the non-aggression principle. On the other hand, Rand believes that government can in principle be funded through voluntary means.[5]

Jennifer Burns in her biography Goddess of the Market: Ayn Rand and the American Right, notes how Rand’s position that “Native Americans were savages”, and that as a result “European colonists had a right to seize their land because native tribes did not recognize individual rights”, was one of the views that “particularly outraged libertarians.”[6] Burns also notes how Rand’s position that “Palestinians had no rights and that it was moral to support Israel, the sole outpost of civilization in a region ruled by barbarism”, was also a controversial position amongst libertarians, who at the time were a large portion of Rand’s fan base.[6]

Libertarians and Objectivists often disagree about matters of foreign policy. Rand’s rejection of what she deemed to be “primitivism” extended to the Middle East peace process in the 1970s.[6][7] Following the Arab-Israeli War of 1973, Rand denounced Arabs as “primitive” and “one of the least developed cultures” who “are typically nomads.”[7] Consequently, Rand contended Arab resentment for Israel was a result of the Jewish state being “the sole beachhead of modern science and civilization on their (Arabs) continent”, while decreeing that “when you have civilized men fighting savages, you support the civilized men, no matter who they are.”[7] Many libertarians were highly critical of Israeli government at the time.[citation needed]

Most scholars of the libertarian Cato Institute have opposed military intervention against Iran,[8] while the Objectivist Ayn Rand Institute has supported forceful intervention in Iran.[9][10]

The United States Libertarian Party’s first candidate for president of the United States, John Hospers, credited Rand as a major force in shaping his own political beliefs.[11]David Boaz, executive vice president of the Cato Institute, an American libertarian think tank, described Rand’s work as “squarely within the libertarian tradition” and that some libertarians are put off by “the starkness of her presentation and by her cult following.”[12]Milton Friedman described Rand as “an utterly intolerant and dogmatic person who did a great deal of good.”[13] One Rand biographer quoted Murray Rothbard as saying that he was “in agreement basically with all [Rand’s] philosophy,” and saying that it was Rand who had “convinced him of the theory of natural rights…”[14] Rothbard would later become a particularly harsh critic of Rand, writing in The Sociology of the Ayn Rand Cult that:

The major lesson of the history of the [objectivist] movement to libertarians is that It Can Happen Here, that libertarians, despite explicit devotion to reason and individuality, are not exempt from the mystical and totalitarian cultism that pervades other ideological as well as religious movements. Hopefully, libertarians, once bitten by the virus, may now prove immune.[15]

Some Objectivists have argued that Objectivism is not limited to Rand’s own positions on philosophical issues and are willing to work with and identify with the libertarian movement. This stance is most clearly identified with David Kelley (who separated from the Ayn Rand Institute because of disagreements over the relationship between Objectivists and libertarians), Chris Sciabarra, Barbara Branden (Nathaniel Branden’s former wife), and others. Kelley’s Atlas Society has focused on building a closer relationship between “open Objectivists” and the libertarian movement.[citation needed]

Rand condemned libertarianism as being a greater threat to freedom and capitalism than both modern liberalism and conservatism.[16] Rand regarded Objectivism as an integrated philosophical system. Libertarianism, in contrast, is a political philosophy which confines its attention to matters of public policy. For example, Objectivism argues positions in metaphysics, epistemology, and ethics, whereas libertarianism does not address such questions. Rand believed that political advocacy could not succeed without addressing what she saw as its methodological prerequisites. Rand rejected any affiliation with the libertarian movement and many other Objectivists have done so as well.[17]

Rand said of libertarians that:

They’re not defenders of capitalism. They’re a group of publicity seekers…. Most of them are my enemies… I’ve read nothing by Libertarians (when I read them, in the early years) that wasn’t my ideas badly mishandledi.e., the teeth pulled out of themwith no credit given.”[16]

In a 1981 interview, Rand described libertarians as “a monstrous, disgusting bunch of people” who “plagiarize my ideas when that fits their purpose.”[16]

Responding to a question about the Libertarian Party in 1976, Rand said:

The trouble with the world today is philosophical: only the right philosophy can save us. But this party plagiarizes some of my ideas, mixes them with the exact oppositewith religionists, anarchists and every intellectual misfit and scum they can findand call themselves libertarians and run for office.”[18]

In 2011, Yaron Brook, president of the Ayn Rand Institute, spoke at the Foundation for Economic Education.[19] He was a keynote speaker at FreedomFest 2012.[20] He appeared on ReasonTV on July 26, 2012.[21]

Ayn Rand Institute board member John Allison spoke at the Cato Club 200 Retreat in September 2012,[22] contributed “The Real Causes of the Financial Crisis” to Cato’s Letter,[23] and spoke at Cato’s Monetary Conference in November, 2011.[24]

On June 25, 2012, the Cato Institute announced that John Allison would become its next president.[25] In Cato’s public announcement, Allison was described as a “revered libertarian.” In communication to Cato employees, he wrote, “I believe almost all the name calling between libertarians and objectivists is irrational. I have come to appreciate that all objectivists are libertarians, but not all libertarians are objectivists.”[26]

On October 15, 2012, Brook explained the changes to The American Conservative:

I dont think theres been a significant change in terms of our attitude towards libertarians. Two things have happened. Weve grown, and weve gotten to a size where we dont just do educational programs, we do a lot more outreach and a lot more policy and working with other organizations. I also believe the libertarian movement has changed. Its become less influenced by Rothbard, less influenced by the anarchist, crazy for lack of a better word, wing of libertarianism. As a consequence, because were bigger and doing more things and because libertarianism has become more reasonable, we are doing more work with them than we have in the past. But I dont think ideologically anything of substance has changed at the Institute.[27]

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Libertarianism and Objectivism – Wikipedia, the free …

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Libertarianism: What Everyone Needs to Know

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Nov 022015

Historically, Americans have seen libertarians as far outside the mainstream, but with the rise of the Tea Party movement, libertarian principles have risen to the forefront of Republican politics. But libertarianism is more than the philosophy of individual freedom and unfettered markets that Republicans have embraced. Indeed, as Jason Brennan points out, libertarianism is a quite different–and far richer–system of thought than most of us suspect.

In this timely new entry in Oxford’s acclaimed series What Everyone Needs to Know, Brennan offers a nuanced portrait of libertarianism, proceeding through a series of questions to illuminate the essential elements of libertarianism and the problems the philosophy addresses, including such topics as the Value of Liberty, Human Nature and Ethics, Economic Liberty, Civil Rights, Social Justice and the Poor, Government and Democracy, and Contemporary Politics. Brennan asks the most fundamental and challenging questions: What do Libertarians think liberty is? Do libertarians think everyone should be selfish? Are libertarians just out to protect the interests of big business? What do libertarians think we should do about racial injustice? What would libertarians do about pollution? Are Tea Party activists true libertarians? As he sheds light on libertarian beliefs, Brennan overturns numerous misconceptions. Libertarianism is not about simple-minded paranoia about government, he writes. Rather, it celebrates the ideal of peaceful cooperation among free and equal people. Libertarians believe that the rich always capture political power; they want to minimize the power available to them in order to protect the weak. Brennan argues that libertarians are, in fact, animated by benevolence and a deep concern for the poor.

Clear, concise, and incisively written, this volume explains a vitally important philosophy in American history–and a potent force in contemporary politics.

What Everyone Needs to Know is a registered trademark of Oxford University Press.

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Libertarianism: What Everyone Needs to Know

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First Amendment – constitution |

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Oct 282015

The First Amendment of the United States Constitution is contained in the Bill of Rights. The First Amendment has proven to be one of the most fundamental and important in respects to the rights attributed to the populace of the United States. Originally, the First Amendment was implemented and applied solely to Congress. However, by the beginning of the twentieth century, it was upheld that the First Amendment is to apply to all forms of government, including state and local levels. The Supreme Court decided that the Fourteenth Amendment Due Process Clause would apply to the 1st Amendment, and thus rendering such a decision.

As stated in the United States Constitution, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, of of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances. Though a relatively short and concise assertion, the text provides for quite an encompassing set of rights that protect the citizens of the United States, and some of the most important and basic human rights. The First Amendment has many clauses that relate to each of the concepts that it sets out to protect. Religion is discussed in two clauses, one regarding the establishment of religion, and the other the free exercise of religion.

This proves to be one of the most important rights to secure by the Fathers of the Constitution, for so many people of European descent immigrated to the American Colonies to avoid religious persecution, and to find a safe haven to practice their religion of choice without any dire consequences. The First Amendment prohibits the government to establish a formal or national religion for the nation. It also addresses that there will be no preference of any particular religion, including the practice of no religion, or non religion.

The 1st Amendment guarantees the people of the United States the free exercise of religion, without interference from governmental factions. This right would also extend to any organization or individual infringing on such right, and would be deemed as unconstitutional.

One of the most commonly referred to clauses under the 1st Amendment is the freedom of speech. This clause has proven to be of great importance, particularly in the twentieth century and continues on with such regard in our lifetime. Under the text of the First Amendment, many issues are addressed regarding Freedom of Speech, and restrictions to exist in which such a practice may prove to be harmful to the general population or public. An example is the concept of sedition, and how this conduct can lead to insurrection against the government.

Other concepts also addressed include commercial speech, political speech, obscenity, libel, slander, and symbolic speech, such as the desecration of the American Flag. Under the First Amendment, there have been important and key court cases that have established a form precedence in how to apply the Amendment to these kinds of circumstances. The Freedom of the press is also included, and subject to similar restrictions as the freedom of speech.

The rights to petition and assembly often seem to be overlooked, for freedom of religion and speech are most commonly associated with the 1st Amendment. The right to petition is important because it gives citizens the opportunity to address their government in issues that have relevance and importance to the commonwealth. The formulation of an assembly, under the First Amendment, can be interpreted as citizens gathering and unifying for the purpose of communicating views or opinions on national issues, and for the relaying of pertinent information. The right to assembly is often related to that of petition, in such a way where citizens may assemble in the process of petitioning the government.


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First Amendment – constitution |

First Amendment – National Constitution Center

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Oct 282015

Clauses of the First Amendment

The Establishment Clause

Americas early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities.

During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or Congregationalist) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church.

After Independence, there was widespread agreement that there should be no nationally established church. The Establishment Clause of the First Amendment, principally authored by James Madison, reflects this consensus. The language of the Establishment Clause itself applies only to the federal government (Congress shall pass no law respecting an establishment of religion). All states disestablished religion by 1833, and in the 1940s the Supreme Court held that disestablishment applies to state governments through the Fourteenth Amendment.

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organizations selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification. Beyond that, the meaning of the Amendment is often hotly contested, and Establishment cases in the Supreme Court often lead to 5-4 splits.

The Lemon Test

In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify when a government practice violates the Establishment Clause: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion. Lemon v. Kurtzman (1971). In the years since Lemon, the test has been much criticized and the Court often decides Establishment Clause cases without reference to it. Yet the Justices have not overruled the Lemon test, meaning the lower courts remain obliged to use it. In some specific areas of controversy, however, the Court has adopted specific, more targeted tests to replace Lemon.

The vast majority of Establishment Clause cases have fallen in four areas: monetary aid to religious education or other social welfare activities conducted by religious institutions; government-sponsored prayer; accommodation of religious dissenters from generally-applicable laws; and government owned or sponsored religious symbols.

Aid to religious institutions

Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.

After two early decisions upholding state statutes allowing students who attend private religious schools to receive transportation, Everson v. Board of Education (1947), and textbook subsidies available to all elementary and secondary students, Board of Education v. Allen (1968), the Court attempted for about fifteen years to draw increasingly sharp lines against the use of tax-funded assistance for the religious aspects of education. At one point the Court even forbade public school teaching specialists from going on the premises of religious schools to provide remedial assistance. Aguilar v. Felton (1985). More recently, the Court has upheld programs that provide aid to educational or social programs on a neutral basis only as a result of the genuine and independent choices of private individuals. Zelman v. Simmons-Harris (2002). Indeed, the Court has held that it is unconstitutional under free speech or free exercise principles to exclude otherwise eligible recipients from government assistance solely because their activity is religious in nature. Rosenberger v. University of Virginia (1995).

Government-sponsored prayer

The Courts best-known Establishment Clause decisions held it unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. Engel v. Vitale (1962); Abington School District v. Schempp (1963). Although these decisions were highly controversial among the public (less so among scholars), the Court has not backed down. Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Weisman (1992), and football games, Santa Fe Independent School District v. Doe (2000).

In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers (1983), the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith. Town of Greece v. Galloway (2014).

Accommodation of religion

Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. v. Bullock (1989), it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws. A unanimous Court upheld this approach for prisoners against a claim that granting religious accommodations violates the Establishment Clause, reasoning that RLUIPA alleviates exceptional government-created burdens on private religious exercise in prisons. Cutter v. Wilkinson (2005).

The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers. The Courts recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014), holding that RFRA exempts for-profit employers from paying for insurance coverage of contraceptive drugs that they believe are abortion-inducing, has reinvigorated the debate over such laws.

Government-sponsored religious symbols

The cases involving governmental displays of religious symbolssuch as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public landhave generated much debate. The most prominent approach in more recent cases is called the endorsement test; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.

The Courts decisions in this arena are often closely divided. They also illustrate that the Court has declined to take a rigid, absolutist view of the separation of church and state. In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it engenders a friendly community spirit of good will in keeping with the season. But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was indisputably religiousindeed sectarian. In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an officials description of the Ten Commandments as the embodiment of ethics in Christ, was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005). Only one Justice was in the majority in both cases.

More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state.

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution.

The Establishment Clause: A Check on Religious Tyranny by Marci A. Hamilton

An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern:

If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.

Benjamin Franklin, Letter to the London Packet (June 3, 1772).

The father of the Constitution and primary drafter of the First Amendment, James Madison, in his most important document on the topic, Memorial and Remonstrance against Religious Assessments (1785), stated:

During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. . . . What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.

Two years later, John Adams described the states as having been derived from reason, not religious belief:

It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the influence of Heaven, any more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. . . .Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.

The Works of John Adams, Second President of the United States, Vol. 4, 292-93 (Charles C. Little & James Brown, eds., 1851).

Massachusetts and Pennsylvania are examples of early discord. In Massachusetts, the Congregationalist establishment enforced taxation on all believers and expelled or even put to death dissenters. Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses. Baptist pastor John Leland was an eloquent and forceful proponent of the freedom of conscience and the separation of church and state. For him, America was not a Christian nation, but rather should recognize the equality of all believers, whether Jews, Turks, Pagans [or] Christians. Government should protect every man in thinking and speaking freely, and see that one does not abuse another. He proposed an amendment to the Massachusetts Constitution in 1794 because of the evils . . . occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics.”

Pennsylvania, dubbed the Holy Experiment by founder William Penn, was politically controlled by Quakers, who advocated tolerance of all believers and the mutual co-existence of differing faiths, but who made their Christianity a prerequisite for public office, only permitted Christians to vote, and forbade work on the Sabbath. Even so, the Quakers set in motion a principle that became a mainstay in religious liberty jurisprudence: the government may not coerce citizens to believe what they are unwilling to believe. If one looks carefully into the history of the United States religious experiment, one also uncovers a widely-shared view that too much liberty, or licentiousness, is as bad as no liberty. According to historian John Philip Reid, those in the eighteenth century had as great a duty to oppose licentiousness as to defend liberty.

Establishment Clause Doctrine

The Establishment Clause has yielded a wide array of doctrines (legal theories articulated by courts), each of which is largely distinct from the others, some of which are described in Professor McConnells and my joint contribution on the Establishment Clause. The reason for this proliferation of distinct doctrines is that the Establishment Clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy. The further complication is that the exercise of power is fluid, which leads both state and church to alter their positions to gain power either one over the other or as a union in opposition to the general public or particular minorities.

The separation of church and state does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny. The established churches of Europe were well-known to the Founding era and the Framers and undoubtedly contributed to James Madisons inclusion of the Establishment Clause in the First Amendment, and its ratification. The following are some of the most important principles.

The Government May Not Delegate Governing Authority to Religious Entities

The Court has been sensitive to incipient establishments of religion. A Massachusetts law delegated authority to churches and schools to determine who could receive a liquor license within 500 feet of their buildings. The Supreme Court struck down the law, because it delegated to churches zoning power, which belongs to state and local government, not private entities. Larkin v. Grendels Den, Inc. (1982). According to the Court: The law substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body . . . on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of [p]olitical fragmentation and divisiveness along religious lines.

In another scenario, the Supreme Court rejected an attempt to define political boundaries solely according to religion. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated the neighborhood boundaries of Satmar Hasidim Orthodox Jews in Kiryas Joel Village as a public school district to itself. Thus, the boundary was determined solely by religious identity, in part because the community did not want their children to be exposed to children outside the faith. The Court invalidated the school district because political boundaries identified solely by reference to religion violate the Establishment Clause.

There Is No Such Thing as Church Autonomy Although There Is a Doctrine that Forbids the Courts from Determining What Religious Organizations Believe

In recent years, religious litigants have asserted a right to church autonomythat churches should not be subject to governmental regulationin a wide variety of cases, and in particular in cases involving the sexual abuse of children by clergy. The phrase, however, is misleading. The Supreme Court has never interpreted the First Amendment to confer on religious organizations a right to autonomy from the law. In fact, in the case in which they have most recently demanded such a right, arguing religious ministers should be exempt from laws prohibiting employment discrimination, the Court majority did not embrace the theory, not even using the term once. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).

The courts are forbidden, however, from getting involved in determining what a religious organization believes, how it organizes itself internally, or who it chooses to be ministers of the faith. Therefore, if the dispute brought to a court can only be resolved by a judge or jury settling an intra-church, ecclesiastical dispute, the dispute is beyond judicial consideration. This is a corollary to the absolute right to believe what one chooses; it is not a right to be above the laws that apply to everyone else. There is extraordinary slippage in legal briefs in numerous cases where the entity is arguing for autonomy, but what they really mean is freedom from the law, per se. For the Court and basic common sense, these are arguments for placing religion above the law, and in violation of the Establishment Clause. They are also fundamentally at odds with the common sense of the Framing generation that understood so well the evils of religious tyranny.

The Establishment Clause: Co-Guarantor of Religious Freedom by Michael McConnell

The Establishment Clause of the First Amendment Congress shall pass no law respecting an establishment of religion is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the establishment of religion, which has not existed in the United States in almost two centuries. We understand what freedom of speech is, we know what private property” is, and we know what searches and seizures are, but most of us have no familiarity with what an establishment of religion would be.

The Church by Law Established in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea that British subjects had a religious as well as a civic obligation to obey royal authority. The established church was a bit like a government-controlled press: it was a means by which the government could mold public opinion.

British subjects (including Americans in eight of the colonies) were legally required to attend and financially support the established church, ministers were licensed or selected by the government, and the content of church services was partially dictated by the state.

The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level. Establishments survived for a while in a few states, but the last state (Massachusetts) ended its establishment in 1833.

The abolition of establishment of religion entails a number of obvious and uncontroversial elements. Individuals may not be required to contribute to, attend, or participate in religious activities. These must be voluntary. The government may not control the doctrine, liturgy, or personnel of religious organizations. These must be free of state control. Other issues are harder.

For a few decades between the late 1960s and the early 1990s, the Supreme Court attempted to forbid states to provide tax subsidies to schools that teach religious doctrine along with ordinary secular subjects. Most of these schools were Roman Catholic. This effort was largely based on a misinterpretation of history, egged on by residual anti-Catholicism. The Justices said that neutral aid to schools is just like a 1785 effort to force Virginians to contribute to the church of their choice. The analogy, however, made little sense: there is all the difference in the world between funding churches because they inculcate religion and funding schools because they provide education. In fact, the history of the early republic shows that states (and later the federal government, during Reconstruction) funded education by subsidizing all schools on a nondiscriminatory basis, and no one ever suggested this violated the non-establishment principle. By 2002, in Zelman v. Simmons-Harris, the Supreme Court returned to this original idea, allowing the government to fund schools on a neutral basis so long as the choice of religious schools was left to voluntary choice. Not only was ruling this true to history, it also best serves the ideal of religious freedom, making it possible for families to choose the type of education they want for their children.

It is sometimes suggested that laws making special accommodations for people whose religious beliefs are at odds with government policy violate the Establishment Clause, on the theory that these accommodations privilege or advance religion. This is a recently-minted idea, and not a sensible one. In all cases of accommodation, the religion involved is dissenting from prevailing policy, which means, by definition, that the religion is not dominating society. The idea that making exceptions for the benefit of people whose beliefs conflict with the majority somehow establishes religion is a plain distortion of the words. And the Supreme Court has unanimously held that religious accommodations are permissible so long as they lift a governmental obstacle to the exercise of religion, take account of costs to others, and do not favor one faith over another. Nonetheless, when religions take unpopular stances on hot-button issues (for example, regarding abortion-inducing contraceptives or same-sex marriage), critics are quick to assert that it violates the Constitution to accommodate their differences, no matter how little support that position has in history or Supreme Court precedent.

The fundamental error is to think that the Establishment Clause is designed to reduce the role of religion in American life. A better understanding is captured in this statement by Justice William O. Douglas of the Supreme Court: this country sponsor[s] an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. Zorach v. Clauson (1952).

The Free Exercise Clause

Many settlers from Europe braved the hardships of immigration to the American colonies to escape religious persecution in their home countries and to secure the freedom to worship according to their own conscience and conviction. Although the colonists often understood freedom of religion more narrowly than we do today, support for protection of some conception of religious freedom was broad and deep. By the time of Independence and the construction of a new Constitution, freedom of religion was among the most widely recognized inalienable rights, protected in some fashion by state bills of rights and judicial decisions. James Madison, for example, the principal author of the First Amendment, eloquently expressed his support for such a provision in Virginia: It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the free exercise of religion. This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.

From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or exempted from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.

The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.

The belief-action distinction ignored the Free Exercise Clauses obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds warned, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clausewhich by its terms constrains only the federal governmentto limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not unduly infringe religious exercise, the Court reiterated that [c]onduct remains subject to regulation for the protection of society, citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.

In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is compelling. Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.

Although the language of this compelling-interest test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from availability for work requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the governments interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.

In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds concern that religious exemptions permit a person, by virtue of his beliefs, to become a law unto himself, contradicting both constitutional tradition and common sense. Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the political process. Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.

Smith proved to be controversial. In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the least restrictive means of furthering a compelling governmental interest. Almost half of the states have passed similar lawsstate RFRAsapplicable to their own laws. In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contextsfrom kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.

Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversialthe Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rulessome touch on highly contested moral questions. For example, the Court by a 5-4 vote excused a commercial family-owned corporation from complying with the contraception mandate, a regulation which required the corporations health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Courts subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.

Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the unnecessary killing of animals in a ritual or ceremonya law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.

The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a churchs freedom to select its own ministers. The Court distinguished Smith on the ground that it involved government regulation of only outward physical acts, while this case concerns government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).

It remains unclear whether Lukumi and Hosanna-Tabor are narrow exceptions to Smiths general presumption against religious exemptions, or foreshadow yet another shift towards a more exemption-friendly free exercise doctrine.

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution.

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well.

Religious Liberty Is Equal Liberty by Frederick Gedicks

At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exerciseregardless of affiliation.

Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain equal title to the free exercise of Religion according to the dictates of conscience without the governments subjecting some to peculiar burdens or granting to others peculiar exemptions. A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate religious exemptions that would excuse believers from complying with neutral and general laws that constrain the rest of society.

The Supreme Court has historically left the question of religious exemptions to Congress and the state legislatures. The first judicially-ordered exemptions arose in the 1960s and early 1970s, when the Supreme Court held the Free Exercise Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court considered a claim by members of a Native American religion who lost their jobs as drug counselors for using an illegal drug in a religious ritual. The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline. Notwithstanding the narrow ministerial exception recognized in Hosanna-Tabor Evangelical Church & School v. EEOC (2012), the Court has repeatedly affirmed Smith and the century of precedent cited in that case, and has shown no inclination to overturn its basic principle that neutral and general laws should apply equally to all, regardless of religious belief or unbelief.

The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit.

For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would impose the employers religious faith on the employees by reducing their social security benefits regardless of whether they shared their employers religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).

Read the full discussion here.

The Court seems poised to adopt this third-party burden principle in decisions interpreting the 1993 Religious Freedom Restoration Act (RFRA) as well. Five Justices in Burwell v. Hobby Lobby Stores, Inc. (2014), expressly stated that RFRA exemptions imposing significant costs on others are not allowed. The majority opinion likewise acknowledged that courts must take adequate account of third-party burdens before ordering a RFRA exemption.

The growth of religious diversity makes a religious exemption regime doubly impractical. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone. As the Court observed in Lee, a religiously diverse social welfare state cannot shield every person . . . from all the burdens incident to exercising every aspect of the right to practice religious beliefs.

Even under the equal-liberty regime contemplated by the Founders and restored by Smith, government remains subject to important constraints that protect religious liberty. Religious gerrymanders, or laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct, must satisfy strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005). And, like judicially-ordered exemptions, legislative exemptions that impose material costs on others in order to protect believers free exercise interests may be invalid under the Establishment Clause, which protects believers and unbelievers alike from bearing the burdens of practicing someone elses religion. Estate of Thornton v. Caldor (1985).

If exemptions are to be afforded to those whose religious practices are burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society.

Free Exercise: A Vital Protection for Diversity and Freedom by Michael McConnell

One of this nations deepest commitments is to the full, equal, and free exercise of religion a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral.

Unfortunately, in the last few years and especially since the Supreme Courts decision requiring states to recognize same-sex marriage this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate.

That has not been the American way. When this country severed its ties with the British Empire, one thing that went with it was the established church. To an unprecedented degree, the young United States not only tolerated but actively welcomed people of all faiths. For example, despite his annoyance with the Quakers for their refusal to support the revolutionary war effort, Washington wrote to a Quaker Society to express his wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit. Letter to the Annual Meeting of Quakers (1789).

What would it mean to have a regime of free exercise of religion? No one knew; there had been no such thing before. It quickly became clear that it was not enough just to cease persecution or discrimination against religious minorities. Just two years after the ink was dry on the First Amendment, the leader of the Jewish community in Philadelphia went to court and asked, under authority of his states free exercise clause, to be excused from complying with a subpoena to appear in court on his day of sabbath. He did not ask that the state cease to do official business on Saturday, but he did ask the court to make an exception an accommodation that would enable him to be faithful to the Jewish law.

This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?

Read the full discussion here.

In the early years, some religious claimants won and some lost. The Mormon Church lost in a big way, in the first such case to reach the United States Supreme Court. Reynolds v. United States (1878). In 1963, the Supreme Court held that the Free Exercise Clause of the First Amendment does require the government to make accommodations for religious exercise, subject as always to limitations based on the public interest and the rights of others. Sherbert v. Verner (1963). In 1990, the Court shifted to the opposite view, in a case involving the sacramental use of peyote by members of the Native American Church. Employment Division v. Smith (1990).

Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).

The range of claims has been as diverse as the religious demography of the country. A small Brazilian sect won the right to use a hallucinogenic drug in worship ceremonies; Amish farmers have won exceptions from traffic rules; Muslim soldiers have been given special accommodation when fasting for Ramadan; Orthodox Jewish boys won the right to wear their skullcaps when playing high school basketball; a Jehovahs Witness won the right to unemployment compensation after he quit rather than working to produce tank turrets; a Mormon acting student won the right to refuse roles involving nudity or profanity; and in the most controversial recent case, a family-owned business with religious objections to paying for abortion-inducing drugs persuaded the Supreme Court that the government should make those contraceptives available without forcing them to be involved.

In all these cases, courts or agencies came to the conclusion that religious exercise could be accommodated with little or no harm to the public interest or to others. As Justice Sandra Day OConnor (joined by liberal lions Brennan, Marshall, and Blackmun) wrote: courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Employment Division v. Smith (1989) (concurring opinion).

At a time when the Supreme Courts same-sex marriage decision has allowed many millions of Americans to live their lives in accordance with their own identity, it would be tragic if we turned our backs on the right to live in accordance with our religious conviction, which is also part of who we are. A robust protection for free exercise of religion is not only part of the American tradition, it is vital to our protection for diversity and freedom.

Freedom of Speech and the Press

Congress shall make no law . . . abridging the freedom of speech, or of the press. What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.

Although the First Amendment says Congress, the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.

The Supreme Court has interpreted speech and press broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.

The Supreme Court has held that restrictions on speech because of its contentthat is, when the government targets the speakers messagegenerally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information the people should be allowed to hear.

There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.

The rest is here:
First Amendment – National Constitution Center

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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 Newseum Institutes First Amendment Center, with offices at the Newseum in Washington, D.C. and at the John Seigenthaler Center, on the Vanderbilt University campus, in Nashville, Tenn., serves as a forum for the study and exploration of free-expression issues through education, information and entertainment.

Founded by John Seigenthaler on Dec. 15, 1991, the 200th anniversary of the ratification of the Bill of Rights to the U.S. Constitution, the Center provides education and information to the public and groups, including First Amendment scholars and experts, educators, government policy makers, legal experts and students. The Center is nonpartisan and does not lobby, litigate or provide legal advice. It has become one of the most authoritative sources of news, information and commentary in the nation on First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues.

For older articles and commentary, please visit the First Amendment Centers archival site.

Find First Amendment research articles by topic or keyword.


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Learn more about the five freedoms of the First Amendment.


One third of Americans still think the First Amendment goes too far in the rights it guarantees, according to the 2014 State of the First Amendment survey released June 24 by the Newseum Institute.


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The First Amendment to the U.S. Constitution the cornerstone of American democracy is the focus of the Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition.


John Seigenthaler founded the Newseum Institutes First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.


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Adoption and the Common Law Background

Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: ”The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”1 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: ”The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.”2 In this form it went to the Senate, which rewrote it to read: ”That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.”3 Subsequently, the religion clauses and these clauses were combined by the Senate.4 The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.5 In the course of debate, Madison warned against the dangers which would arise ”from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.”6 That the ”simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. ”The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects.”7

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,8 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act9 and the use by the Adams Administration of the Act to prosecute its political opponents,10 something of a libertarian theory of freedom of speech and press,11 which, however much the Jeffersonians may have departed from it upon assuming power,12 was to blossom into the theory undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its consideration of limitations on speech and press in the period following World War I.13 Thus, in 1907, Justice Holmes could observe that even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, ”still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . . . . The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.”14 But as Justice Holmes also observed, ”[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.”15

But in Schenck v. United States,16 the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. ”It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Justice Holmes along with Justice Brandeis soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered no threat of danger to organized institutions.17 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power of the States to suppress speech and press that the doctrines developed.18 At first, Holmes and Brandeis remained in dissent, but in Fiske v. Kansas,19 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California,20 a state law was voided on grounds of its interference with free speech.21 State common law was also voided, the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law.22 Development over the years since has been uneven, but by 1964 the Court could say with unanimity: ”we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”23 And in 1969, it was said that the cases ”have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”24 This development and its myriad applications are elaborated in the following sections. The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons. Supp.15 This leads to a ”state action” (or ”governmental action”) limitation similar to that applicable to the Fourteenth Amendment. Supp.16 The limitation has seldom been litigated in the First Amendment context, but there is no obvious reason why analysis should differ markedly from Fourteenth Amendment state action analysis. Both contexts require ”cautious analysis of the quality and degree of Government relationship to the particular acts in question.” Supp.17 In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that ”[t]he Constitution constrains governmental action ‘by whatever instruments or in whatever modes that action may be taken.’. . . [a]nd under whatever congressional label.”Supp.18 The relationship of the government to broadcast licensees affords other opportunities to explore the breadth of ”governmental action.”Supp.19


[Footnote 1] 1 Annals of Congress 434 (1789). Madison had also proposed language limiting the power of the States in a number of respects, including a guarantee of freedom of the press, Id. at 435. Although passed by the House, the amendment was defeated by the Senate, supra, p.957.

[Footnote 2] Id. at 731 (August 15, 1789).

[Footnote 3] The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).

[Footnote 4] Id. at 1153.

[Footnote 5] The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There are no records of debates in the States on ratification.

[Footnote 6] Id. at 738.

[Footnote 7] 4 W. Blackstone’s Commentaries on the Laws of England 151-52 (T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the Constitution of the United States 1874-86 (Boston: 1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.

[Footnote 8] It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of ”[c]ertain self-created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant, James Madison–Father of the Constitution 1787-1800, 416-20 (1950). ”If we advert to the nature of republican government,” Madison told the House, ”we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Congress 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: ”A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech-free press clause might read something like: ”The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers, supra, at 367.

[Footnote 9] The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would ”write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith, Freedom’s Fetters–The Alien and Sedition Laws and American Civil Liberties (1956).

[Footnote 10] Id. at 159 et seq.

[Footnote 11] L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence of a Free Press (1985), a revised and enlarged edition of Legacy of Suppression, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.

[Footnote 12] L. Levy, Jefferson and Civil Liberties–The Darker Side (Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: ”The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).

[Footnote 13] New York Times Co. v. Sullivan, 376 U.S. 254 (1964), provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of ”a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the ”right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This ”central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. ”Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).

[Footnote 14] Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar views in 1951: ”The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521-522, 524 (1951) (concurring opinion). The internal quotation is from Robertson v. Baldwin, 165 U.S. 275, 281 (1897).

[Footnote 15] Patterson v. Colorado, 205 U.S. 454, 461 (1907).

[Footnote 16] 249 U.S. 47, 51-52 (1919) (citations omitted).

[Footnote 17] Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921). A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920).

[Footnote 18] Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles.

[Footnote 19] 274 U.S. 380 (1927).

[Footnote 20] 283 U.S. 359 (1931). By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United States v. Robel, 389 U.S. 258 (1967).

[Footnote 21] And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).

[Footnote 22] Bridges v. California, 314 U.S. 252, 263-68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).

[Footnote 23] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[Footnote 24] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[Footnote 15 (1996 Supplement)] Through interpretation of the Fourteenth Amendment, the prohibition extends to the States as well. See discussion on incorporation, main text, pp. 957-64.

[Footnote 16 (1996 Supplement)] See discussion on state action, main text, pp.1786-1802.

[Footnote 17 (1996 Supplement)] CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief Justice Burger).

[Footnote 18 (1996 Supplement)] Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-47 (1880)). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is ”not . . . an agency or establishment of the United States Government.” This assertion can be effective ”only for purposes of matters that are within Congress’ control,” the Court explained. ”It is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights of citizens affected by its actions.” 115 S. Ct. at 971.

[Footnote 19 (1996 Supplement)] In CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973), the Court held that a broadcast licensee could refuse to carry a paid editorial advertisement. Chief Justice Burger, joined only by Justices Stewart and Rehnquist in that portion of his opinion, reasoned that a licensee’s refusal to accept such an ad did not constitute ”governmental action” for purposes of the First Amendment. ”The First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts.” Id. at 119.

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International Encyclopedia of Economic Sociology: Libertarianism

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Oct 262015

This essay first appeared in the International Encyclopedia of Economic Sociology, edited by Jens Beckert and Milan Zafirovski (London and New York: Routledge, 2006, pp. 403-407). It was posted as a Notablog entry on 5 January 2006. Comments welcome (post here).

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By Chris Matthew Sciabarra

Libertarianism is the political ideology ofvoluntarism, a commitment to voluntary action in a social context, where no individual or group of individuals can initiate the use of force against others. It is not a monolithic ideological paradigm; rather, it signifies a variety of approaches that celebrate therule of law and the free exchange of goods, services, and ideas a laissez-faire attitude towards what philosopher Robert Nozick (1974) once called capitalist acts between consenting adults.

Modern libertarians draw inspiration from writings attributed to the Chinese sage Lao Tzu, as well as the works of Aristotle, among the ancients; [seventeenth-,] eighteenth- and nineteenth-century classicalliberalism (e.g. John Locke, the Scottish Enlightenment, the American founders, Carl Menger, andHerbert Spencer); individualist anarchism (e.g. Benjamin Tucker and Lysander Spooner); Old Right opponents of Franklin D. Roosevelts New Deal (e.g. Albert Jay Nock, John T. Flynn, Isabel Paterson andH. L. Mencken); modern Austrian economics (e.g. Ludwig von Mises, F. A. Hayek and Murray Rothbard), as well as the economics of the Chicago school(Milton Friedman) and Virginia school (James Buchanan); and the Objectivist philosopherAyn Rand.

Classical liberalism is the most immediatepredecessor of contemporary libertarianism. Locke and the American founders had an impact on those libertarians, such as Rothbard and Rand, who stress individual rights, while the Scottish Enlightenment and Spencer had a major impact on thinkerssuch as Hayek, who stress the evolutionary wisdom of customs and traditions in contradistinctionto the constructivist rationalism of state planners.

Among evolutionists, Spencer in particularmade important contributions to what would become known as general systems theory; some consider him to be the founder of modern sociology. Indeed, he authored Principles of Sociology and TheStudy of Sociology, which was the textbook used for the first sociology course offered in the United States, at Yale University. A contemporary of Charles Darwin, he focused on social evolution the development of societies and organizational structuresfrom simple to compound forms. In such works as The Man Versus the State, he presented a conception of society as a spontaneous, integrated growth and not amanufacture, an organically evolving context for the development of heterogeneity and differentiation among the individuals who compose it. Just as Spencer emphasized organic social evolution, so too did he focus on the organic evolution of the state with its mutually reinforcing reliance onbureaucracy and militarism, and how it might be overcome.

The Austrian-born Carl Menger, a founder along with W. S. Jevons and Lon Walras of the marginalist revolution in economics, held a similar view of social life as a dynamic, spontaneous, evolving process. Influenced by Aristotle in his methodological individualism, Menger wasfervently opposed to the historical relativism of the German historicists of the Methodenstreit. Menger focused on the purposeful actions of individuals in generating unintended sociologicalconsequences a host of institutions, such as language, religion, law, the state, markets, competition and money.

In the twentieth century, the Nobel laureate Austrian economist F. A. Hayek carried on Mengers evolutionist discussion and praised it for providing outstanding guidelines for general sociology. For Hayek (1991), Menger was among the Darwinians before Darwin those evolutionists,such as the conservative Edmund Burke and the liberals of the Scottish Enlightenment, who stressed the evolution of institutions as the product of unintended consequences, rather than deliberate design. Hayek drew a direct parallel between hisown concept of spontaneous order and Adam Smiths notion of the invisible hand. Hayek argued that, over time, there is a competition among various emergent traditions, each of which embodies rivalrules of action and perception. Through a process of natural selection, those rules and institutions that are more durable than others will tend to flourish, resulting in a relative increase in population and wealth. Though he didnt argue for a theory of inevitable progress, as Spencer had, heclearly assumed that liberalism was the social system most conducive to such flourishing.

Like Karl Marx, Hayek criticized utopiansfor their desire to construct social institutions as if from an Archimedean standpoint, external to history and culture. But Hayek turned this analysis on Marx; he developed a full-fledged critique of socialism and central planning as utopian requiring an unattainable synoptic knowledge of all the articulated and tacit dimensions of social life. Hayek argued that market prices were indispensable to rational entrepreneurial calculation. He also focused on the sociological and psychological ramifications of the movement away from markets. He maintains in The Road to Serfdom (1944), for example, that there is a structural connection between social psychology and politics: to the extent that the stateimposes collectivist arrangements on individuals, it is destructive of individualchoice, morals and responsibility, and this destruction of individualism reinforces the spread of statism. And the more the state comes to dominate social life, says Hayek, the more state power will be the only power worth having which is why theworst get on top.

The Austrian economist Ludwig von Mises was similarly opposed to statism and collectivism, and presented, in [1922], an influential book entitled Socialism, which was an economic and sociological analysis of all forms of state intervention from fascism to communism. Mises used the tools of praxeology, the science of humanaction, to demonstrate the calculational problems that all non-market systems face, due to their elimination of private property, entrepreneurialism and the price system. More important, perhaps, is Misess development of a non-Marxist, libertarian theoryof class. Like Charles Dunoyer, Charles Comte, James Mill and other classical liberals, Mises argued that traders on the market share a mutuality of benefit that is destroyed by political intervention. For Mises, the long-term interests of marketparticipants are not in fundamental conflict. It is only with government action that such conflict becomes possible, Mises claims,because it is only government that can create a caste system based on the bestowal of special privileges.

Mises located the central caste conflictin the financial sector of the economy. In such books as The Theory of Money and Credit, he contends that government control over money and banking led to the cycle of boom and bust. A systematicincrease in the money supply creates differentialeffects over time, redistributing wealth to those social groups, especially banks and debtor industries, which are the first beneficiaries of the inflation.

Mises student, Murray Rothbard, developed this theory of caste conflict into a full-fledged libertarian class analysis. Rothbard views central banking as a cartelizing device that has created a powerful structure of class privilege in modern political economy. These privileges growexponentially as government restricts market competition and free entry, thereby creating monopoly through various coercive means (e.g. compulsory cartelization, price controls, output quotas, licensing, tariffs, immigration restrictions, labourlaws, conscription, patents, franchises, etc.).

Rothbards view of the relationship between big business and government in the rise of American statism draws additionally from the work of New Left historical revisionists, such as Gabriel Kolko andJames Weinstein. These historians held that big business was at the forefront of the movement towards government regulation of the market. That movement, according to Rothbard, had both a domestic and foreigncomponent, since it often entailed both domestic regulation and foreign imperialism to secure global markets. The creation of a welfare-warfare state leads necessarily to economic inefficiencies and deep distortions in the structure of production. Like Marx, Rothbard views these internal contradictions as potentially fatal to the economic system; unlike Marx, Rothbard blames these contradictions not on the free market, but on the growth of statism.

Drawing inspiration from Franz Oppenheimers and Albert Jay Nocks distinction between state power and social power, or state and market, and from John C. Calhouns class theory, as presented in Disquisition on Government, Rothbard sawsociety fragmenting, ultimately, into two opposing classes: taxpayers and tax-consumers. In his book Power and Market, Rothbard identifies bureaucrats, politicians and the net beneficiaries of government privilege as among the tax-consumers. Unlike his Austrian predecessors Hayek andMises, however, Rothbard argues that it is only with the elimination of the state that a fully just and productive society can emerge. His anarcho-capitalist ideal society would end the states monopoly on the coercive use of force, as well as taxation and conscription, and allow for the emergence of contractual agencies for the protectionof fully delineated private property rights (thereby resolving the problems of externalities and public goods) and the adjudication of disputes. His scenario had a major impact on Nozick, whose Anarchy,State, and Utopia was written in response to the Rothbardian anarchist challenge.

Ayn Rand, the Russian-born novelist and philosopher, author of best-selling novels TheFountainhead and Atlas Shrugged, was one of those who eschewed the libertarian label, partially because of its association with anarchism. An epistemological realist, ethical egoist and advocate of laissez-faire capitalism, Rand maintained that libertarians had focused too much attention on politics to the exclusion of the philosophical and cultural factors upon which it depended. But even though she saw politics as hierarchically dependent on these factors, she often stressed the reciprocal relationships among disparate elements, from politicsand pedagogy to sex, economics and psychology. She sought to transcend the dualities of mind and body, reason and emotion, theory and practice, fact and value, morality and prudence, and theconventional philosophic dichotomies of materialism and idealism, rationalism and empiricism, subjectivism and classical objectivism (which she called intrinsicism). Yet, despite her protestations, Rand can be placed in the libertarian tradition, given her adherence to its voluntarist political credo.

From the perspective of social theory, Rand proposed a multi-level sociological analysis of human relations under statism. Echoing the Austrian critique of state intervention in her analysis of politics and economics, Rand extended her critique toencompass epistemology, psychology, ethics and culture. She argued that statism both nourished and depended upon an irrational altruist and collectivist ethos that demanded the sacrifice of the individual to the group. It required and perpetuated a psychology of dependence and a groupmentality that was destructive of individual authenticity, integrity, honesty and responsibility. Rand also focused on the cultural preconditions and effects of statism since coercive social relations required fundamental alterations in the nature of language, education, pedagogy, aesthetics and ideology. Just as relations of power operatethrough ethical, psychological, cultural, political and economic dimensions, so too, for Rand, the struggle for freedom and individualism depends upon a certain constellation of moral, psychological, cultural and structural factors that support it. Randadvocated capitalism, the unknown ideal, as the only system capable of generating just social conditions, conducive to the individuals survival and flourishing.

See also: inflation; laissez faire; monopolyand oligopoly.

References and further reading

Calhoun, John C. ([1853]1953) A Disquisition onGovernment and Selections from the Discourse on the Constitution and Government of the United States, Indianapolis, IN: Bobbs-Merrill.

Hayek, F. A. (1944) The Road to Serfdom, Chicago:University of Chicago Press.

(1991) The Collected Works of F. A. Hayek,Volume 3: The Trend of Economic Thinking: Essays on Political Economists and Economic History, Chicago: University of Chicago Press.

Mises, Ludwig von ([1912]1981) The Theory ofMoney and Credit, Indianapolis, IN: Liberty Classics.

(1936) Socialism: An Economic and SociologicalAnalysis, London: Jonathan Cape.

Nozick, Robert (1974) Anarchy, State, and Utopia,New York: Basic Books.

Rand, Ayn (1967) Capitalism: The UnknownIdeal, New York: New American Library.

Rothbard, Murray ([1970]1977) Power and Market:Government and the Economy, Kansas City, MO: Sheed Andrews and McMeel.

(1978) For a New Liberty: The LibertarianManifesto, revised edition, New York: Collier Books.

Sciabarra, Chris Matthew (1995) Ayn Rand: TheRussian Radical, University Park, PA: PennsylvaniaState University Press.

(1995) Marx, Hayek, and Utopia, Albany,NY: State University of New York Press.

(2000) Total Freedom: Toward a DialecticalLibertarianism, University Park, PA: PennsylvaniaState University Press.

Spencer, Herbert (1873) The Study of Sociology,New York: D. Appleton.

(188298) The Principles of Sociology, threevolumes, London: Williams and Norgate.

([1940]1981) The Man Versus the State, withSix Essays on Government, Society, and Freedom, Indianapolis, IN: Liberty Classics.


______ Note: [bracketed words] above are corrections to online version


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International Encyclopedia of Economic Sociology: Libertarianism

LIBERTARIANISM 101 – The Advocates for Self-Government

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Oct 232015

Your Way to Freedom, Abundance, Peace, and Justice

Libertarianism is, as the name implies, the belief in liberty. Libertarians strive for the best of all worlds a free, peaceful, abundant world where each individual has the maximum opportunity to pursue his or her dreams and to realize his full potential.

The core idea is simply stated, but profound and far-reaching in its implications. Libertarians believe that each person owns his or her own life and property, and has the right to make his own choices as to how he lives his life and uses his property as long as he simply respects the equal right of others to do the same.

Another way of saying this is that libertarians believe you should be free to do as you choose with your own life and property, as long as you dont harm the person or property of others.

Libertarianism is thus the combination of liberty (the freedom to live your life in any peaceful way you choose), responsibility (the prohibition against the use of force against others, except in defense) and tolerance (honoring and respecting the peaceful choices of others).

Libertarians believe that this combination of personal and economic liberty produces abundance, peace, harmony, creativity, order and safety. Indeed, that is one of the central lessons of world history. Virtually all the progress the human race has enjoyed during the past few centuries is due to the increasing acceptance of these principles. But we are still far from a truly libertarian world. Libertarians believe we would see far more progress, abundance and happiness if the ideas of liberty were fully accepted and allowed to work their miracles.

Our goal as libertarians is to bring liberty to the world, so that these humane and proven ideas can be put into action. This will make our world a far better place for all people.

If this interests you, please explore the material at this site. Evaluate these ideas. Kick their tires and take them for an intellectual test drive.

We hope you will join us in embracing this ideal and in taking a stand to personally help bring about a world of liberty, abundance and peace.

Theres more than just left or right.

Libertarians offer you a better choice than just left or right. The libertarian way gives you more choices, in politics, in business, your personal life. Libertarians advocate both personal and economic liberty. Todays liberals like personal liberty but want government to control your economic affairs. Conservatives reverse that, advocating more economic freedom but wanting to clamp down on your private life.

Libertarian positions on the issues are neither left nor right, nor a combination of the two. Libertarians believe that, on every issue, you have the right to decide for yourself whats best for you and to act on that belief as long as you respect the right of other people to do the same and deal with them peacefully and honestly.

In a sense, true conservatives tend to be libertarian on most economic issues, and true liberals tend to be libertarian on most social issues. Libertarians call for freedom across the board, on both economics and social issues, coupled with a foreign policy of peace as described by Thomas Jefferson:Peace, commerce, and honest friendship with all nations entangling alliances with none.

Libertarianism offers the opportunity to go beyond the stale left versus right debate and embrace liberty on every issue.

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LIBERTARIANISM 101 – The Advocates for Self-Government

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First Amendment – Text, Origins, and Meaning

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Oct 232015

Text of Amendment: 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. Jeff Hunter/The Image Bank/Getty Images Origins of the First Amendment

The founding father most concerned–some might say obsessed–with free speech and free religious exercise was Thomas Jefferson, who had already implemented several similar protections in the constitution of his home state of Virginia. It was Jefferson who ultimately persuaded James Madison to propose the Bill of Rights, and the First Amendment was Jefferson’s top priority.

The first clause in the First Amendment–“Congress shall make no law respecting an establishment of religion”–is generally referred to as the establishment clause. It is the establishment clause that grants “separation of church and state,” preventing–for example–a government-funded Church of the United States from coming into being. More

The second clause in the First Amendment–“or prohibiting the free exercise thereof”–protects freedom of religion. Religious persecution was for all practical purposes universal during the 18th century, and in the already religiously diverse United States there was immense pressure to guarantee that the U.S. government would not require uniformity of belief.

Congress is also prohibited from passing laws “abridging the freedom of speech.” What free speech means, exactly, has varied from era to era. It is noteworthy that within ten years of the Bill of Rights’ ratification, President John Adams successfully passed an act specifically written to restrict the free speech of supporters of Adams’ political opponent, Thomas Jefferson. More

During the 18th century, pamphleteers such as Thomas Paine were subject to persecution for publishing unpopular opinions. The freedom of press clause makes it clear that the First Amendment is meant to protect not only freedom to speak, but also freedom to publish and distribute speech. More

The “right of the people to peaceably assemble” was frequently violated by the British in the years leading up to the American Revolution, as efforts were made to ensure that radical colonists would not be able to foment a revolutionary movement. The Bill of Rights, written as it was by revolutionaries, was intended to prevent the government from restricting future social movements.

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First Amendment – Text, Origins, and Meaning

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Its Hip! Its Cool! Its Libertarianism! – By Connor …

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Sep 232015

Calling yourself a libertarian today is a lot like wearing a mullet back in the nineteen eighties. It sends a clear signal: business up front, party in the back.

You know, those guys who call themselves socially liberal but fiscally conservative? Yeah. Its for them.

Today, the ruling class knows that theyve lost the culture wars. And unlike with our parents, they cant count on weeping eagles and the stars n bars to get us to fall in line. So libertarianism is their last ditch effort to ensure a succession to the throne.

Republicans freak you out but think the Democrats are wimps? You must be a libertarian! Want to sound smart and thoughtful in front of your boss without alienating your socially liberal buds? Just say the L-word, pass the coke and everyones happy!

Just look at how they play it up as the cool alternative to traditional conservatism. Its pathetic. George Will wore the bowtie. But Reason magazines Nick Gillespie wears an ironic D.A.R.E. t-shirt. And dont forget the rest of his all-black wardrobe, complete with leather jacket. What a totally with-it badass.


With such a bleak economic forecast for the Millennials, it shouldnt surprise anyone that our elites want to make libertarianism shorthand for political disaffection. Now theres a demographic with some growth potential. And its inspired a lot of poorly-sourced, speculative babble about how the kids have all gone Galt, almost always through the personal anecdotes of young white men.

A couple of months ago, after Harvard released a poll on the political views of Millennials, libertarians took to the internet to tell the world how the youth of America was little more than a giant anarcho-capitalist sleeper cellready to overthrow the state and privatize the air supply at a moments notice. So I took a look at the poll numbers. And you know what? Its utter horseshit.

Right off the bat, were told that 79% of Millennials dont consider themselves politically-engaged at all so, uh, keep that in mind.

Much is made of the fact that less than half of the survey respondents thought the government should provide free health care to those who cant afford it. What they dont mention is that that number (44 percent) is twice the percentage who say they stand against (22 percent) such hand outs. Nearly a third didnt think one way or the other.

Then we hear that the poll proves kids dont care about climate change. But they dont mention that slightly more Millennials wanted the government to do more on that front than theyre doing noweven if it hurt economic growth. Nearly half, you guessed it, neither agree nor disagree. (Come on kids, Rock the Vote!)

More Millennials identify as liberals than conservatives. Hardly any of them (10 percent) support the libertarian-embraced Tea Party. About three-quarters say they despise congressional Republicans.

Nearly two-thirds voted for Obama in 2008. Slightly over half approve of him now. Nearly three-quarters of Millennials hate congressional Republicans. 55% trust in the U.S. military, one of the largest state-socialist programs in the entire world, also responsible for, you know, those wars that libertarians supposedly hate.

Over a quarter put their faith in the federal government all or most of the time, and 55% some of the time. Only 17% answered never. And despite all their supposed Ron Paul love, they trust the globalist United Nations even more than they do the feds.

A little nibble here with only 36% approving of Obamas handling of the budget deficit, but then again, thats actually better than his rating on the deficit with Americans of all ages. Plus, worrying about the budget deficit is how dumb people have tried to sound smart since the days of FDR. And most people are dumb.

And when we finally get down to a hypothetical libertarian match-up between Obama and Ron Paul41 percent pick Obama and only 27 percent pick Paul.

Oh, but the kiddies are cool with gay marriage and tired of bombing brown people overseas? No shit. That just makes them normal people living in the 21st century. Im for single-payer health care and cant stand Barney Frank. Does that mean I sip the Kool-Aid at the Lyndon LaRouche compound?

None of this should be too surprising. For almost two decades, roughly two-thirds of the American public have supported what wed call a moderate European welfare stateputting the average U.S. citizen significantly to the left of the Democratic party, a center/center-right organization saddled, much to their dismay, with a perpetually-disappointed center-left constituency.

But hey, our ruling class would shit a brick if any of that wealth redistribution stuff happened over here. Which is why this is a center-right nation has been a favorite Fox News talking point for over ten years. Its only nowafter Occupy Wall Street forced their handthat the media is finally willing to admit that it might be bullshit.

But libertarianism? Our ruling class is totally fine with that. Smoke your reefer and sodomize whomever you please, just keep your mouth shut and hand over your Social Security account.


Never trust a hippietarian

I get the appeal. The states been sticking it to working folks for decades. It seems almost unimaginable that Big Government could ever be run by us and not the One Percent.

But child labor laws, the Civil Rights act, federal income tax, minimum wage laws, Social Security, Medicare, food safetylibertarians have accused all of them as infringements upon the free market that would lead to economic ruin. And over and over again, theyve been proven wrong. Life goes ona little less gruesomelyand society prospers.

There is no such thing as a free-market, economist Ha-Joon Chang has said repeatedly. A market looks free only because we so unconditionally accept its underlying restrictions that we fail to see them.

In other words, markets are social institutions, just as much under the thumb of politics and government as everything else. Which means theyre subject to democratic pressures, as they should be.

And what you earn from said markets? Chang: All our wages are, at root, politically determined. Despite what Ron Pauls trolls might have you believe, gold Krugerrands dont spray out your asshole every time you type up a spreadsheet or pour a Grande mochachino for your next customer.

Capitalism has always been a product of Big Government. Ever since the railroads of the nineteenth century, to Silicon Valley, Big Pharma and the banks, the Nanny State has been there all along, passing subsidies and tax breaks, and eating the costs the private sector doesnt want.

So whenever a libertarian says that capitalism is at odds with the state, laugh at him. Its like saying that the NFL is at war with football fields. To be a libertarian is to say that God or the universe marked up that field, squirted out the pigskins from the bowels of the earth and handed down the playbooks from Mt. Sinai.


When a Red like me wants to argue for something like universal health care or free college tuition, we can point to dozens of wealthy democratic societies doing just that. The Stalinist left is nothing more than a faint memory. But where are the libertarian Utopias?

General Pinochets Chile was a longtime favorite. But seeing as how it relied on a fascist coupwith a big assist from Nixon and KissingerChiles lost a bit of that Cold War luster. So these days, for the slightly more with-it libertarian, we get Singapore as the model of choice.

Hey, isnt that where the Facebook guy lives these days? Thats pretty hip!

Ah, Singapore: a city-state near the very top in the world when it comes to number of police and execution rate per capita. Its a charming little one-party state where soft-core pornography is outlawed, labor rights are almost nonexistent and gay sex is banned. Expect a caning if you break a window. And death for a baggie of cocaine.

But hey: no capital gains tax! (Freedom!)

Singapore: Libertarian Paradise

Its not like any of this will make it through the glassy eyes of the true-believers. Ludwig von Mises, another libertarian pin-up boy, wrote in 1927 that, Fascism and similar movements aiming at the establishment of dictatorships are full of the best intentions and that their intervention has, for the moment, saved European civilization.

Lately, Ron Pauls economic advisor has been claiming that Communist Party-ruled China has a freer market than the U.S.s.


So lets talk a little about this freedom theyre always going on about. Or, to paraphrase Lenin, the libertarians ultimate nemesis: freedom for who to do what?

Most American adults spend about half their waking hours at a job. And during that time, libertarians do not give a flying fuck about your liberty. Instead, they condone the most brutal of tyrannies all in the name of a private employers freedom.

Racial discrimination, verbal abuse, random drug testing, body-searches, sexual harassment, illegal termination, email monitoring, union busting, even withholding piss-breaksask any libertarian how they feel about workplace unfreedom and theyll tell you: Hey man, if you dont like it, you have the freedom to get another job. If folks are hiring. But with four-and-a-half applicants for every job, theyre probably not.

Heres another thing libertarians always forget to mention: a free-market capitalist society has never and by definition can never lead to full-employment. It has to be made to byyou guessed itthe Nanny State. Free market capitalism actually requires a huge mass of the unemployedits not just a side effect.

And make no mistake: corporate America loves a high unemployment rate.

When most everyone has a job, workers are less likely to take shit. They do nutty things like join unions, demand better wages and refuse to work off-the-clock. They start to stand up to real power: not to the EPA, and not the King of England, but to their bosses.

But with a real unemployment rate close to 20 percent, that aint happening. Well, fuck. Better sign up for that Big Government welfare state theyre always whining about. Hey, dont worry. You could always sell a little crack and turn a few tricks. Libertarians totally support that.

After all, thats your freedom, dude!


Libertarianism isnt some cutting-edge political philosophy that somehow transcends the traditional left to right spectrum. Its a radical, hard-right economic doctrine promoted by wealthy people who always end up backing Republican candidates, no matter how often they talk about civil liberties, ending the wars and legalizing pot. Funny how that works.

Its the third way for a society in which turning against capitalism or even taking your foot off the pedal is not an option. Thanks to our shitty constitution and the most violent labor history in the West, we never even got a social-democratic party like the rest of the developed world.

So what do we get? The libertarian line: No, no: the problem isnt that were too capitalist. Its that were not capitalist enough!


At a time in which our society has never been more interdependent in every possible way, libertarians think theyre John fucking Wayne looking out over his ranch with an Apache scalp in his belt, or John fucking Galt doingwhatever it is he does. (Collect vintage desk toys from the Sharper Image?)

Their whole ideology is like a big game of Dungeons & Dragons. Its all make-believe, except for the chain-mailthey brought that from home. Elves, dwarves and fair maidens for capital. Even with the supposedly good onesanti-war libertarianswere still talking about people who think Medicares going to lead to Stalinism.

So my advice is to call them out.

Ask them what their beef really is with the welfare state. First, theyll talk about the deficit and say we just cant afford entitlement programs. Well, thats obviously a joke, so move on. Then theyll say that it gives the government tyrannical power. Okay. Let me know when the Danes open a Guantnamo Bay in Greenland.

Heres the real reason libertarians hate the idea. The welfare state is a check against servility towards the rich. A strong welfare state would give us the power to say Fuck You to our bossesthis is the power to say Im gonna work odd jobs for twenty hours a week while I work on my driftwood sculptures and play keyboards in my chillwave band. And Ill still be able to go to the doctor and make rent.

Sounds like freedom to me.

Connor Kilpatrick is the managing editor of Jacobin magazine.

Would you like to know more? Read Thirty More Years of Hell and Silent Majority Millennials by Connor Kilpatrick.

Read more: child labor laws, deficit, democratic party, fascism, fdr, george will, ha-joon chang, libertarian, ludwig von mises, lyndon larouche, medicare, millennials, nick gillespie, pinochet, reason, ron paul, Singapore, social security, socialism, Tea Party, Connor Kilpatrick, Class War For Idiots, Libertards

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First Amendment of our countrys Bill of Rights

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Sep 102015

Freedom of Speech and of the Press: The First Amendment allows citizens to express and to be exposed to a wide range of opinions and views. It was intended to ensure a free exchange of ideas even if the ideas are unpopular.

Freedom of speech encompasses not only the spoken and written word, but also all kinds of expression (including non-verbal communications, such as sit-ins, art, photographs, films and advertisements). Under its provisions, the media including television, radio and the Internet is free to distribute a wide range of news, facts, opinions and pictures. The amendment protects not only the speaker, but also the person who receives the information. The right to read, hear, see and obtain different points of view is a First Amendment right as well.

But the right to free speech is not absolute. The U.S. Supreme Court has ruled that the government sometimes may be allowed to limit speech. For example, the government may limit or ban libel (the communication of false statements about a person that may injure his or her reputation), obscenity, fighting words, and words that present a clear and present danger of inciting violence. The government also may regulate speech by limiting the time, place or manner in which it is made. For example the government may require activists to obtain a permit before holding a large protest rally on a public street. Freedom of Assembly and Right to Petition the Government: The First Amendment also protects the freedom of assembly, which can mean physically gathering with a group of people to picket or protest; or associating with one another in groups for economic, political or religious purposes.

The First Amendment also protects the right not to associate, which means that the government cannot force people to join a group they do not wish to join. A related right is the right to petition the government, including everything from signing a petition to filing a lawsuit.

Freedom of Religion: The First Amendment’s free exercise clause allows a person to hold whatever religious beliefs he or she wants, and to exercise that belief by attending religious services, praying in public or in private, proselytizing or wearing religious clothing, such as yarmulkes or headscarves. Also included in the free exercise clause is the right not to believe in any religion, and the right not to participate in religious activities.

Second, the establishment clause prevents the government from creating a church, endorsing religion in general, or favoring one set of religious beliefs over another. As the U.S. Supreme Court decided in 1947 in Everson v. Board of Education of Ewing Township, the establishment clause was intended to erect “a wall of separation between church and state,” although the degree to which government should accommodate religion in public life has been debated in numerous Supreme Court decisions since then.

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First Amendment of our countrys Bill of Rights

First Amendment – Kids |

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Sep 102015

A Guide to the First Amendment

The First Amendment, sometimes called Amendment 1, is the first amendment to the United States Constitution and is also one out of ten amendments in the Bill of Rights. The First Amendment makes it illegal to make a law that establishes a religion, stops the freedom of speech, stops people from practicing their religion, stops the press from printing what they want, and stops people from exercising their right to assemble peacefully or demonstrating against the government.

Text of the First Amendment

The text of the First Amendment of the United States Constitution is the following:

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.

What Does the First Amendment Mean?

There are many key phrases in the first Amendment. Here are some explanations on what exactly they mean.

Freedom of religion: The First Amendment of the United States Constitution prevents the government from setting up or establishing an official religion of the country. American Citizens have the freedom to attend a church, mosque, synagogue, temple, or other house of worship of their choice. They can also choose to not be involved in any religion as well. Because of the First Amendment, we can practice our religion however we want to.

Freedom of speech: The First Amendment of the United States Constitution stops the government from making any laws that may stop us from saying what we feel or think. The American people have the right to share their opinions with other people or criticize the government.

Freedom of the press: Freedom of the press means we have the right to get information from many different sources of information. The government does not have the power to control what is broadcasted on radio or TV, what is printed in books or newspapers, or what is offered online. American citizens can request time on TV to respond to any views that they disagree with. They can also write letters to newspapers, which might be printed for others readers to see. Americans can also pass out leaflets that state their opinions. They may also their own online web pages that have their opinions.

Freedom of assembly: American citizens have the right to come together in private and public gatherings. Citizens can join groups for religious, social, recreational, or political reasons. By organizing in order to act on a common idea and accomplish a common goal, American citizens can more easily spread their ideas to others.

Right to petition: The right to petition the government means that American citizens can ask for adjustments or changes in the government. Citizens can do this by collecting signatures for petitions and sending them to elected representatives. They can also call, e-mail, or write to their elected representatives as well. Another way they can petition the government is by creating support groups that try to cause change by lobbying the government.


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First Amendment – Kids |

Federal court rules that only drug companies, not supplement …

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Sep 102015

(NaturalNews) In a ruling that many holistic healers and homeopathic physicians are likely to find hypocritical, a federal court has handed Big Pharma an unprecedented victory by giving a drug company preliminary approval to market a drug for a condition for which it has yet to be approved by the Food and Drug Administration.

The drug, Vascepa, manufactured by Amarin Pharma, is approved for use in treating very high levels of fats known as triglycerides over 500 mg per deciliter in a patient’s bloodstream, reports But Amarin also wanted to promote the medication for use in patients who have “persistently high levels” of triglycerides, from 200 to 499 mg/deciliter.

The FDA denied that request earlier this year over concerns that Vascepa would not help such patients avoid heart attacks or heart disease. That decision led Amarin to file suit in court, claiming its First Amendment rights permitted the company to provide information to physicians and other primary care providers.

Providers have long prescribed medications for “off-label” uses those not included in a drug’s literature or for uses not specifically approved by federal regulators but the drug companies have traditionally been banned from marketing their products for such off-label uses.

“This is huge,” Jacob Sherkow, an associate professor at New York Law School, told The Washington Post. “There have been other instances a court has held that off-label marketing is protected by the First Amendment, but… this is the first time, I think, that any federal court that any court has held in such a clear, full-throated way that off-label marketing is protected by the First Amendment, period, full stop.” reported that the case stemmed from a 2012 New York City federal appeals court ruling finding that a Big Pharma sales rep had not violated FDA regulations by promoting off-label use for a drug to treat narcolepsy, Xyrem, because his speech as long as he was not being misleading was protected by the First Amendment. However, in the Amarin case, the FDA said that the Xyrem decision was limited in scope and therefore could not be applied to Vascepa, but Engelmayer disagreed.

However, the parameter of “truthful speech” and a complete statement of facts has proved concerning to some.

“I find the decision very troubling. It’s a big push off on to a very slippery slope, a very steep slippery slope toward removing the government’s authority to limit the claims that drug companies can make about the effectiveness of their products,” Harvard Medical School professor Jerry Avorn told the Post.

“There’s an enormous amount, enormous numbers of statements that drug companies could make about their products that are not overtly fraudulent, but are not the same as a comprehensive review of all the good and bad evidence, that the FDA undertakes when it reviews a drug,” Avorn added.

Makers and consumers of health-related supplements, however, are also decrying the ruling, especially companies whose First Amendment rights have been ignored by courts and the FDA in the past.

In December 2012, we reported that a federal appeals court in New York upheld the free speech rights of a pharmaceutical company regarding off-label uses of Xyrem, even as courts and the FDA were gagging makers of natural supplements.

And in March 2013, we reported that the FDA used a truth-in-labeling regulation in issuing warning letters to a pair of supplement companies whose “crime” was nothing more than having customer-related interactions via the Internet.

It appears that there are two separate standards for Big Pharma and holistic and homeopathic healers.


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What is Libertarianism? – Institute for Humane Studies

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Sep 082015

According to Funk and Wagnalls Dictionary

lib-er-tar-i-an, n. 1. a person who advocates liberty, esp. with regard to thought or conduct. advocating liberty or conforming to principles of liberty.

According to American Heritage Dictionary of the English Language: Fourth Edition, 2000.

NOUN: 1. One who advocates maximizing individual rights and minimizing the role of the state.

The Challenge of Democracy (6th edition), by Kenneth Janda, Jeffrey Berry, and Jerry Goldman

Liberals favor government action to promote equality, whereas conservativesfavor government action to promote order. Libertarians favor freedom and oppose government action to promote either equality or order.

According to What It Means to Be a Libertarian by Charles Murray, Broadway Books, 1997.

The American Founders created a society based on the belief that human happiness is intimately connected with personal freedom and responsibility. The twin pillars of the system they created were limits on the power of the central government and protection of individual rights. . . .

A few people, of whom I am one, think that the Founders insights are as true today as they were two centuries ago. We believe that human happiness requires freedom and that freedom requires limited government.

The correct word for my view of the world is liberal. Liberal is the simplest anglicization of the Latin liber, and freedom is what classical liberalism is all about. The writers of the nineteenth century who expounded on this view were called liberals. In Continental Europe they still are. . . . But words mean what people think they mean, and in the United States the unmodified term liberal now refers to the politics of an expansive government and the welfare state. The contemporary alternative is libertarian. . . .

Libertarianism is a vision of how people should be able to live their lives-as individuals, striving to realize the best they have within them; together, cooperating for the common good without compulsion. It is a vision of how people may endow their lives with meaning-living according to their deepest beliefs and taking responsibility for the consequences of their actions.

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What is Libertarianism? – Institute for Humane Studies

What Is Libertarian – Institute for Humane Studies

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Sep 052015

According to Funk and Wagnalls Dictionary

lib-er-tar-i-an, n. 1. a person who advocates liberty, esp. with regard to thought or conduct. advocating liberty or conforming to principles of liberty.

According to American Heritage Dictionary of the English Language: Fourth Edition, 2000.

NOUN: 1. One who advocates maximizing individual rights and minimizing the role of the state.

The Challenge of Democracy (6th edition), by Kenneth Janda, Jeffrey Berry, and Jerry Goldman

Liberals favor government action to promote equality, whereas conservativesfavor government action to promote order. Libertarians favor freedom and oppose government action to promote either equality or order.

According to What It Means to Be a Libertarian by Charles Murray, Broadway Books, 1997.

The American Founders created a society based on the belief that human happiness is intimately connected with personal freedom and responsibility. The twin pillars of the system they created were limits on the power of the central government and protection of individual rights. . . .

A few people, of whom I am one, think that the Founders insights are as true today as they were two centuries ago. We believe that human happiness requires freedom and that freedom requires limited government.

The correct word for my view of the world is liberal. Liberal is the simplest anglicization of the Latin liber, and freedom is what classical liberalism is all about. The writers of the nineteenth century who expounded on this view were called liberals. In Continental Europe they still are. . . . But words mean what people think they mean, and in the United States the unmodified term liberal now refers to the politics of an expansive government and the welfare state. The contemporary alternative is libertarian. . . .

Libertarianism is a vision of how people should be able to live their lives-as individuals, striving to realize the best they have within them; together, cooperating for the common good without compulsion. It is a vision of how people may endow their lives with meaning-living according to their deepest beliefs and taking responsibility for the consequences of their actions.

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What Is Libertarian – Institute for Humane Studies

Essay: John Rawls and Robert Nozick: liberalism vs …

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Aug 152015

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These days , in the occasional university philosophy classroom, the differences between Robert Nozicks Anarchy, State, and Utopia (libertarianism) and John Rawls A Theory of Justice (social liberalism) are still discussed vigorously. In order to demonstrate a broad spectrum of possible political philosophies it is necessary to define the outer boundaries, these two treatises stand like sentries at opposite gatesof the polis

John Rawls, A Theory of Justice. Rawls presents an account of justice in the form of two principles: (1) liberty principle= peoples equal basic liberties such as freedom of speech, freedom of conscience (religion), and the right to vote should be maximized, and (2) difference principle= inequalities in social and economic goods are acceptable only if they promote the welfare of the least advantaged members of society. Rawls writes in the social contract tradition. He seeks to define equilibrium points that, when accumulated, form a civil system characterized by what he calls justice as fairness. To get there he deploys an argument whereby people in an original position (state of nature), make decisions (legislate laws) behind a veil of ignorance (of their place in the society rich or poor) using a reasoning technique he calls reflective equilibrium. It goes something like: behind the veil of ignorance, with no knowledge of their own places in civil society, Rawls posits that reasonable people will default to social and economic positions that maximize the prospects for the worst off feed and house the poor in case you happen to become one. Its much like the prisoners dilemma in game theory. By his own words Rawls = left-liberalism.

Robert Nozick, Anarchy, State, and Utopia, libertarian response to Rawls which argues that only a minimal state devoted to the enforcement of contracts and protecting people against crimes like assault, robbery, fraud can be morally justified. Nozick suggests that the fundamental question of political philosophy is not how government should be organized but whether there should be any state at all, he is close to John Locke in that government is legitimate only to the degree that it promotes greater security for life, liberty, and property than would exist in a chaotic, pre-political state of nature. Nozick concludes, however, that the need for security justifies only a minimal, or night-watchman, state, since it cannot be demonstrated that citizens will attain any more security through extensive governmental intervention. (Nozick p.25-27)

the state may not use its coercive apparatus for the purpose of getting some citizens to aid others, or in order to prohibit activities to people for their own good or protection. (Nozick Preface p.ix)



Some Practical Questions for Rawls:

Some Practical Questions for Nozick:

Read The Liberal Imagination of Frederick Douglass for an excellent discussion on the state of liberalism in America today.


Anarchy, State, and Utopia. Robert Nozick. Basic Books. 1974

A Theory of Justice. John Rawls. Harvard University Press. 1971

Disclaimer: This is a forum for me to capture in digital type my understanding of various philosophies and philosophers. I cannot vouch for the accuracy of the interpretations.

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Portal:Libertarianism – Wikipedia, the free encyclopedia

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Aug 082015

The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remained president and CEO for 35 years until 2012 when he was replaced by John A. Allison, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the second largest privately held company (after Cargill) by revenue in the United States.

The Institute’s stated mission is “to broaden the parameters of public policy debate to allow consideration of the traditional American principles of limited government, individual liberty, free markets, and peace” by striving “to achieve greater involvement of the intelligent, lay public in questions of policy and the proper role of government.” Cato scholars conduct policy research on a broad range of public policy issues, and produce books, studies, op-eds, and blog posts. They are also frequent guests in the media.

Cato scholars were critical of George W. Bush’s Republican administration (20012009) on several issues, including the Iraq War, civil liberties, education, agriculture, energy policy, and excessive government spending. On other issues, most notably health care, Social Security, global warming, tax policy, and immigration, Cato scholars praised Bush administration initiatives. During the 2008 U.S. presidential election, Cato scholars criticized both major-party candidates, John McCain and Barack Obama.

The Cato Institute was named the fifth-ranked think tank in the world for 2009 in a study of leading think tanks by James G. McGann, Ph.D. of the University of Pennsylvania, based on a criterion of excellence in “producing rigorous and relevant research, publications and programs in one or more substantive areas of research”. It has been called “Washingtons premier libertarian think tank.”

Ronald Ernest Paul (born August 20, 1935) is a Republican United States Congressman from Lake Jackson, Texas, a physician, a bestselling author, and the fourth-place finisher in the 2008 Republican presidential primaries.

Originally from the Green Tree suburb of Pittsburgh, Pennsylvania, he graduated from Gettysburg College in 1957, then studied at Duke University School of Medicine; after his 1961 graduation and a residency in obstetrics and gynecology, he became a U.S. Air Force flight surgeon, serving outside the Vietnam War zone. He later represented Texas districts in the U.S. House of Representatives (19761977, 19791985, and 1997present). He entered the 1988 presidential election, running as the Libertarian nominee while remaining a registered Republican, and placed a distant third.

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How Laissez-Faire Made Sweden Rich |

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Aug 082015

October 25, 2013 essays

Sweden often gets held up as an example of how socialism can work better than markets. But, as Norberg shows, Swedens history in fact points to the opposite conclusion.

Once upon a time I got interested in theories of economic development because I had studied a low-income country, poorer than Congo, with life expectancy half as long and infant mortality three times as high as the average developing country.

That country is my own country, Swedenless than 150 years ago.

At that time Sweden was incredibly poorand hungry. When there was a crop failure, my ancestors in northern Sweden, in ngermanland, had to mix bark into the bread because they were short of flour. Life in towns and cities was no easier. Overcrowding and a lack of health services, sanitation, and refuse disposal claimed lives every day. Well into the twentieth century, an ordinary Swedish working-class family with five children might have to live in one room and a kitchen, which doubled as a dining room and bedroom. Many people lodged with other families. Housing statistics from Stockholm show that in 1900, as many as 1,400 people could live in a building consisting of 200 one-room flats. In conditions like these it is little wonder that disease was rife. People had large numbers of children not only for lack of contraception, but also because of the risk that not many would survive for long.

As Vilhelm Moberg, our greatest author, observed when he wrote a history of the Swedish people: Of all the wondrous adventures of the Swedish people, none is more remarkable and wonderful than this: that it survived all of them.

But in one century, everything was changed. Sweden had the fastest economic and social development that its people had ever experienced, and one of the fastest the world had ever seen. Between 1850 and 1950 the average Swedish income multiplied eightfold, while population doubled. Infant mortality fell from 15 to 2 per cent, and average life expectancy rose an incredible 28 years. A poor peasant nation had become one of the worlds richest countries.

Many people abroad think that this was the triumph of the Swedish Social Democratic Party, which somehow found the perfect middle way, managing to tax, spend, and regulate Sweden into a more equitable distribution of wealthwithout hurting its productive capacity. And so Swedena small country of nine million inhabitants in the north of Europebecame a source of inspiration for people around the world who believe in government-led development and distribution.

But there is something wrong with this interpretation. In 1950, when Sweden was known worldwide as the great success story, taxes in Sweden were lower and the public sector smaller than in the rest of Europe and the United States. It was not until then that Swedish politicians started levying taxes and disbursing handouts on a large scale, that is, redistributing the wealth that businesses and workers had already created. Swedens biggest social and economic successes took place when Sweden had a laissez-faire economy, and widely distributed wealth preceded the welfare state.

This is the story about how that happened. It is a story that must be learned by countries that want to be where Sweden is today, because if they are to accomplish that feat, they must do what Sweden did back then, not what an already-rich Sweden does now.

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Does The First Amendment Protect The Release of Videos …

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Aug 062015

A Los Angeles court has ordered the Center for Medical Progress not to publish further video exposing Planned Parenthoods sale of aborted babies. Another Federal Court has also barred the release of specific documents pertinent to CMPs investigation. On Federalist Radio today, Ben cuts through the legalese with scholars from Powerline Legal Blog and the Alliance Defense Fund.

Paul Mirengoff, a lawyer and author at Power Line Blog, explains that both courts have made use of prior restraint, an instrument barring free expression before publication. He says that this legal mechanism has long been deemed as unconstitutional and highly unfavorable in most cases.

Casey Mattox, Senior Council for the Alliance Defense Fund, predicts that, in the long run, these videos will keep coming out.

Also during the program, the founder of Puerto Rico Clearing House, Cate Long, explains how that US territory ended up in default for the first time in history.

Click here to listen, or use the embedded link below.

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Does The First Amendment Protect The Release of Videos …

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The First Amendment, as others see it

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Aug 042015

5:48 p.m. CDT July 30, 2015

Gene Policinski Gene Policinski writes the First Amendment column distributed by Gannett News Service. (Gannett News Service, Sam Kittner/First Amendment Center/File)(Photo: SAM KITTNER / GNS)

Theres no doubt that a huge number of Americans are unable to name the five freedoms protected by the First Amendment national survey results each year since 1997 sadly leave little doubt about that circumstance.

On a more positive note, when reminded of the core freedoms of religion, speech, press, assembly and petition, our fellow citizens line up behind them in large numbers.

But when it comes to how those freedoms apply in everyday life? Well, its not that theres less support. Rather, less agreement.

About a month ago, the Newseum Institutes First Amendment Center published the results of its annual State of the First Amendment survey and the findings of a follow-up survey that focused on issues around display of the Confederate battle flag. The former was taken before a U.S. Supreme Court decision that allows Texas officials to ban display of the flag on state license plates, and before the killings in Charleston, South Carolina, by an apparent racist who had posed for a photo displaying the flag. The latter survey was taken after both had occurred.

In sum, the two survey results showed a shift in how the public viewed the Texas auto tag ban swinging from opposed to support. And the second survey found that while a majority of white and Hispanic respondents did not attach the same racist meaning to the flag as did black respondents, all three groups favored taking down the battle flag from public monuments and government buildings and approved of private companies removing flag-related items from store offerings.

Some interesting reactions to the reporting of those results have come via email.

In one , noted as a Letter to the Editor, in which the writer complained that the reporting, citing this column, seems to be saying that as long as a majority believes then the First Amendment does not apply. Well, thats hardly the case. Freedom of speech means that you and I and others get to say what we will regardless of majority opinion including, if we wish, public and vigorous display of the Confederate battle flag.

The First Amendment protects our right to speak, but doesnt silence others who are just as free to disagree, criticize and oppose.

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The First Amendment, as others see it

Pierre Teilhard De Chardin | Designer Children | Prometheism | Euvolution | Transhumanism