Cyborg | Designer-Babies | Futurism | Futurist | Immortality | Longevity | Nanotechnology | Post-Human | Singularity | Transhuman

Libertarianism: What Everyone Needs to Know

 Misc  Comments Off on Libertarianism: What Everyone Needs to Know
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.

Read more:
Libertarianism: What Everyone Needs to Know

 Posted by at 11:40 am  Tagged with:

Top Ten Secret Societies | Illuminati Rex

 Illuminati  Comments Off on Top Ten Secret Societies | Illuminati Rex
Oct 292015

Annual meeting of around 130 North-Atlantic elites from the fields of energy, finance, government, intelligence, academia and the media.

Official site:

Famous Attendees: David Rockefeller, Henry Kissinger, Bill Clinton, Gordon Brown, Angela Merkel, Alan Greenspan, Ben Bernanke, Larry Summers, George Soros, Donald Rumsfeld, Robert Murdoch, Jean-Claude Trichet (EU Bank President), Mervyn King (Bank of England), Edmond de Rothschild, Robert Oppenheimer, Robert McNamara, Henry Ford II

List of Bilderberg participants (wiki) 2012 list of US participants on They Rule Infographic showing how members of the Bilderberg are connected to absolutely everything.

With 65 to 70 regular members, the Bilderberg Group is the most exclusive group on this list. The group came to be identified with the Bilderberg Hotel in Holland where the group first met in 1954. The ultra secret group was founded by Denis Healey, Joseph Retinger, David Rockefeller and Prince Bernhard of the Netherlands (of the infamous Lockheed scandal in which he took kickbacks selling exploding planes).

From the get-go the Bilderbergers sought to develop a strategy and create European consensus for a European Common Market. They were behind the Amsterdam Treaty, the Treaty of Maastricht, the Treaty of Rome, and finally the European Constitution. Leaked 1955 transcripts revealed that Bilderbergers had discussed the creation of a United European with its own currency. They are also working on merging Canada, United states and Mexico into a North American Union. The Bilderberg discussed improving business relations and extending IMF loans to China before Nixons famous 1972 visit. At the Bilderberg meeting of 1991, David Rockefeller told then Arkansas Governor Bill Clinton to support NAFTA.

The groups major source of funds is the Rockefeller and Ford Foundations. The members are cherry picked most prominent members of other influential organization and national think tanks such as the Brookings, Carnegie Endowment, and Council of Foreign Relations. Much of the leadership of the Bilderberg is also groomed within these foundations. All these organization have similar ideologies. Henri de Castries of the French House of Castries currently heads the Bilderberg.

The High Priests of Globalization at the first Bilderberg Group Meeting in Oosterbeek, Netherlands

The annual meetings are held in a different country each year and is attended by around 130 elites with about 65 regulars. Forty percent of Bilderbergers are Americans. Each international region is roughly represented by one member from the finance sector, one from the government sector, and one from academia. The Group is separated into 6 panels with around 20 people in each panel. There are 3 main speakers per panel and everyone is obligated to comment.

As a whole the membership manages the planets resources and their membership is especially concentrated in the energy and banking sectors. Their goals are a one world constitution, a one world government, a one army and they work tirelessly towards that goal. The typical globalist agenda.

Potential candidate are observed a for a few meetings before being asked to join. Bilderberg researchers often point out that according to the Logan Act, it is illegal for any American government official to be present at the Bilderberg meetings.

Researcher and author of True Story Of Bilderberg Daniel Estulin has investigated the Bilderberg Group for 15 years. He stresses that the Bilderberg is not a Judeo-Masonic conspiracy. His book is the book on the Bilderberg. Strangely, Estulin claims that Bilderberg Steering Committee member and founder of Canadas largest book chain Heather Reisman has banned True Story Of Bilderberg from her stores. However, that doesnt appear to be the case.

Jim Tucker has dedicated his entire life to chasing the Bilderbergers around the world after learning of the Groups existing in the 70s. Tucker has an informer inside the group who has consistently leaked him list of participants and talking points for years.

Secret Bavarian secret society active at the end of the 18th century and modern blanket term for the crme de la elite crme.

The Bavarian Illuminati was founded by Adam Weishaupt on May 1, 1776. The Illuminati is a secret society within secret societies. In 1784, the order was banned by the Bavarian government. Today, the term Illuminati is usually used as a blanket term for the inner circle of the elite.

The Illuminati was separated into three classes; 1. The Nursery Class; 2. The Masonic Class; 3. The Mystery Class. Each class was separated into degrees. Lower classes were unaware of the existence of higher classes. Non Illuminati were called the Profane.

I. Nursery Class: 1. Illuminati Novice (1-2 year trial period) 2. Illuminati Minerval 3. Illuminati Minor

II. Masonic Class: Symbolic Masonry 1. Entered Apprentice 2. Fellow Craft 3. Master Mason

Scottish Masonry 1. Illuminati Major (Scot Novice) 2. Illuminati Dirigens (Scot Knight)

III. Mystery Class: Lesser Mysteries 1. Illuminati Priest 2. Illuminati Prince (Regent)

Greater Mysteries 1. Illuminati Magus 2. Illuminati Rex

I am currently exposing the secrets of the Bavarian Illuminati in comic format and Terry Melanson has written a detailed non-fiction book about Adam Weishaupts Order of the Illuminati.

Exactly what the illuminati is varies a great deal from one conspiracy theorist to the next. Different versions of it continues to appear in computer games, music, television and movies. Illuminati Researcher Mark Dices book Illuminati: Facts & Fiction does a great job at weeding through the various modern Illuminati incarnations and separating the wheat from the chaff. It has saved me hours of work in establishing the root of various Illuminati theories and rumors. (although he considers the Bavarian Illuminati to be Luciferian, which is something I should ask him about) Nevertheless, Dice book is essential.

Some researchers believe the Illuminati originated before and that Adam Weishaupt simply reincarnated a much older society. The 13 Bloodlines of the Illuminati is a popular theory about ancient families secretly ruling the United States.

Others believe that the modern elite and the current proponents of the New World Order grew out of Weishaupts movement. However, we have access to most of the original writings of the Illuminati and we know that the abolishment of private property was one of the goals of the Order. This is hardly in line with the modern capitalist plutocrats who make up todays Illuminati. Todays Illuminati is anything but enlightened.

Elite senior fraternity at Yale University

Famous Bonesmen: William H. Taft (Us President), George H.W. Bush (Us President, CIA), George W. Bush (US President) Averell Harriman, H.J. Heinz II, Henry Luce (Time-Life,CIA), Bill Bundy (CIA) and William F. Buckley. (CIA)

AKA Chapter 322, is a secret society at Yale University established by William Russell and Alphonso Taft in 1832. Each year 15 juniors are selected to join the Skulls in their senior year.

The Tomb, Yale

Investment banking firm Brown Brothers Harriman pays the tax bill. No one lives inside the Tomb. At the mention of the words Skull and Bones, they must leave the room. Meetings are on Thursdays and they always have dinner on Sundays. In the 2004 US Election, two Bonesmen, John Kerry and George W. Bush went head-to-head for the Presidency of the United States.

Skull and Bones, do you accept?

If the neophyte accepts, he is given a rolled up message tied with a black ribbon and sealed with the skulls emblem imprinted into black wax. The message instructs the neophyte of the time of place of his initiation. He is also instructed not to bring any metal. (Note that Masons are also divested of all metals during their initiation ceremonies.) Once they accept, they are members for life.

Skull and Bones owns Deer Island in St-Lawrence river

The clock is 5 minutes faster, which represents Skull and Bones which is to differentiate time spend inside the tomb from the outside, which is referred to as Barbarian time.

In 1876 a group of students calling themselves File and Claw broke into the Tomb and discovered that the Order was founded in 1832 (32) as the second chapter (+2) of a German secret society. They discovered a painting of a skull surrounded by Masonic symbols in Room 322 and released floor plans of the Tomb. The Skull themselves claim that 322 represents 322 bce, the year Demosthenes died. In keeping with this legend, their calendar begins 322 years before the Roman calendar. The year 2013 would be 2335 Anno Demostheni in Bonespeak.

They reportedly have the bones of Geronimo and Pancho Villa hidden in 322. Room 322 is the inner temple of the Skull and Bones. It features an encased skeleton which the Bonesmen called Madame Pompadour. There are other compartments in the case including manuscripts, secrecy oaths and initiation rituals.

HW Bush, Bonesman, 1948

Author of Fleshing out the Skull and Bones Kris Milliken, claims that the core group of Skull and Bones is still very much involved in the dope trade. They are Sorcerers of Death performing black magic. Taft Russells family fortune came from opium and according to Eustace Mullins, the fraternity continued to be involved in the dope trade all the way up to the Vietnam war.

3000 elites from academia, government, media, intelligence, military, banking and top corporations.

Official site:

Famous Members: David Rockefeller, Henry Kissinger, Bill Clinton, Conrad Black, William F. Buckley, Bill Bundy, Allen Dulles, Gerald Ford, Herbert Hoover, Angelina, Jolie George Kennan, Carl Sagan, Paul Warburg, Oprah Winfrey, George Soros, Colin Powell, Bill Moyers, Rupert Murdoch, Zbigniew Brzezinski and Edgar Bronfman, Sr.

List of Council on Foreign Relations Members (wiki) Membership map on They Rule

The Council on Foreign Relations grew out of the round table groups and began as a gathering of scholars known as the Inquiry which included the power behind FDRs throne and author of Philip Dru: Administrator, Colonel House and Walter Lippmann.

This group attended the Paris Peace Conference where powerful members of the elite attended a private gathering at the Majestic Hotel. Round Table member Lionel Curtis suggested the creation a Royal Institute for International Affair in London and the Council of Foreign Relations, its US counterpart in New York. The CFR was officially founded in 1921.

Council on Foreign Relations HQ at 58 East 68th Street and Park Avenue

It is one of the most powerful private organizations and has a major influence on U.S. foreign policy. Its equally powerful British sister organization, the Royal Institute of International Affairs has been renamed Chatham House. Today the CFR has over 3000 members.

The group suggested the formation of a League of Nation. Five of the 6 men of the Agenda Group which drafted the United States proposal for a United Nations were members of the CFR. Carol Quigley called its members the international financial coterie The CFR was instrumental in planning the post World War 2 economic and political world order.

About the round table groups: De Beers Cecil Rhodes and journalist William T. Stead organized a secret society with an executive committee known as the Circle of Initiate. The secret society had an outer circle known as the Association of Helpers which eventually evolved into the Round Table Groups.

Sources and further information: Memoirs (Amazon) David Rockefeller, 2003

David Rockefellers elite think tank of over 300 private citizens from Europe, Asia, and North America.

Official site:

Famous Members: David Rockefeller, George HW Bush, Bill Clinton, Zbigniew Brzezinski, Jean-Claude Trichet, Henry Kissinger and Jimmy Carter.

List of List of Trilateral Commission Members ( .PDF) Membership map on They Rule.

David Rockefeller had been looking for a way to include Japan into international cooperation discussion. At the Belgium Bilderberg conference of 1972, Rockefeller discussed the idea with Columbia University Russian Studies professor Zbigniew Brzezinski (Zbig) who had himself previously approached the Bilderberg Steering Committee. The Steering Committee had been unreceptive to the idea.

The think tank had its first executive committee meeting in Tokyo in October 1973. The Trilateral Commission receive funds mostly from the Rockefeller Brothers Fund and is deeply rooted in the CFR. The commission helps governments around the world reach constructive accords with other governments. They promote closer cooperation between Europe, Asia, and North America. In 1974 they published The Crisis of Democracy calling for democracy in moderation.

Ancient secret society sworn to protect the holy bloodline of Jesus Christ and Mary Magdalene

Famous Grandmasters: Jean de Gisors (11881220), Nicolas Flamel (13981418), Ren dAnjou (14181480), Lonard de Vinci (15101519), Isaac Newton (16911727), Charles de Lorraine (17461780), Maximilian de Lorraine (17801801), Victor Hugo (18441885), Claude Debussy (18851918),Jean Cocteau (19181963)

Certainly one of the most intriguing of all secret societies, unfortunately, it isnt real. The Priory of Sion legend is completely made up! (almost)

He also included Rennes-le-Chteau restaurant owner Nol Corbus (another admitted hoaxer) legend of Father Franois Brenger Saunire about discovering parts of the Knights Templarss lost treasure. It all made for a great story.

The strange events of the Priory of Sion and Rennes-le-Chteau were finally epitomized on the big screen in 2006 Da Vinci Code starring Tom Hanks.

Note to Mr. Langdon: Vinegar freezes at just under 0C (32F ). Next time you encounter an impossible-to-open-without-the-combination-type Cryptex, consider sticking the thing in the freezer for a few hours.

Researchers Lynn Pickett and Clive Prince have found evidence for the existence of a Priory of Sion within the Masonic Strict Observance Rites of Germany. Their goal was to form a United states of Europe.

Male elites meet every July for a 2 week encampment at private campground.

Famous Attendees: Henry Kissinger, David Rockefeller, Ronald Reagan, GW Bush, Gerald Ford, Richard Nixon, Malcolm Forbes, William F. Buckley, Clint Eastwood, and William Randolph Hearst. Camp Membership

Founded in 1872, the Bohemian Grove is a 2700-acre campground in the midst of ancient Redwood trees located in Sonoma County, California. Every July, elites participate in a 2 week encampment to make ritual sacrifices to the sinister owl-god Moloch. Power brokers assemble at The Owl Shrine for informal Lakeside Talks. Nixon canceled his scheduled Lakeside Talk in 1971 because the media was insisting on covering it.

Thanks to the work of Alex Jones, Chris Jones and Phillip Weiss who have each individually infiltrated the Grove, the outside world has been able to assemble a lot of information on what happens there. Alex Jones footage can be seen in Dark Secrets: Inside Bohemian Grove (Youtube, 2:02:56) and Chris Joness (who worked undercover at the Grove) can be seen in Alex Jones The order of Death, which was released 5 years later to commemorate Alex Jones infiltration of the Grove. (Youtube, 44:46)

President Ronald Reagan and Richard Nixon, 1967

Weiss stayed as a guess at Bohemian Grove for 7 days in 1989. Weiss heard Walter Cronkite himself as the voice of the infamous owl. He even shook Ronald Reagans hand who confirmed that it was indeed at the Grove in 67 that he had assured Nixon that he would not challenge him in the upcoming Republican nomination. (so much for non-weaving. spiders) He also witnessed a Grover engaging in unBohemian behavior when Henry Kissinger rudely cut in line at the phone banks.

The Founding Founders, Freemasonry and the capital of the United States

Mostly harmless today, the freemasons held immense power in the 18th and 19th century. The earliest historical document mentioning the Old Charges of Freemasonry is the Regius Poem and dates to around 1425. The Grand Lodge of England formed in 1717. Masonic expressions that have become common idioms include: On the square, On the level, giving/getting the third degree and blackballing.

Blue Lodge and 2 major appendant bodies

Due to multiple bans on Freemasonry by Popes, a good catholic is still expected join the Knights of Columbus, as President Kennedy did, the Vaticans answer to Freemasonry. The Vatican is yet to reverse its stance on Freemasonry.

Freemasonry is composed of three levels, referred to as the Blue Lodge degrees:

1. Entered Apprentice 2. Fellow craft 3. Master Mason

Non-masons are called Cowans. There are multiple other degrees that a mason can obtain once he has become a Master Mason (Third degree) which masons call Appendant degrees. The most popular ones are the Scottish Rite of Freemasonry, with 33 degrees and the York Rite .

In addition there are Masonic Lodges not recognized by the Grand Loge of England, and as a result, by the majority of regular Masonic lodges. For example, the Rite of Memphis-Misraim has 99 degrees and the Grand Orient de France accepts women.

A group of Three Hundred ruling individual descendant from the Black Nobility

Famous Members: British royals, Dutch royals, House of Hapsburg (?),Lord Halifax, Winston Churchill, Cecil Rhodes, George Bush, Aldous Huxley, Henry Kissinger, David Rockefeller, Giuseppe Mazzini and H.G. Wells

The existence of the Committee of 300 is wholly dependent on the word of Dr John Coleman, author of Conspirators Hierarchy The Story of The Committee of 300.

Joseph Pavlonksy John Clarke Doctor Coleman tells us that he gazed upon a mention of the supranational Committee of 300 or the Olympians while stationed with MI6 in Angola. He then decided to dedicate the rest of his life to exposing the group. His status as a MI6 whistleblower and the origin of his doctorate are never discussed in interviews. (leading Eustace Mullins to question his motives.)

Coleman uses the core of conspiracy theory literature and adds his own secret group which allegedly controls all the other ones. (Popular author David Icke added shape-shifting Reptilians to conspiracy lore and became an international bestseller) All the usual players are there. The Bilderberg Group, the Royal Institute of International Affairs, the Club of Rome, the Trilateral Commission and the Council on Foreign Relations all make an appearance and serve as the executive arms of the Committee of 300. In Colemans scenario, the RIIA is above all the others and chooses the American Secretary of State and through him/her give the US President his marching orders. Prime Minister Disraeli had MI6 snuff out Abraham Lincoln and later, William Stevenson of Mi6 ordered the hit on JFK.

He also throws in popular nuggets such as the Black Nobility, (the group varies a great deal in conspiracy lore from the historical Black Nobility) who according to Coleman, made the Borgias look like Sunday school teachers. (The mysterious nobles are always a crowd pleaser.) According to Dr. Colemans decade long studies at the Cairo Museum (?), no member of the families of the Black Nobility or their servants has ever died from the Black Plague. He discovered that they drank a secret herbal compound and exposed themselves to low-frequency radiation making them immune to the disease.

The Queen of England is the head of the Committee of 300. The 300 families all rule with equal shares! (highly doubtful) The Queen is actually from the Black Nobility family of the House of Guelph. (Rex note: It is true that they change their name from Saxe-Coburg-Gotha to Windsor)

The Committee of 300 were behind Beatlemania and used the Beatles to induce young Americans towards drugs and Rock n Roll. They even came up with the word teenager (or not)

New words and new phrases prepared by Tavistock were introduced to America along with the Beatles. Words such as rock in relation to music sounds, teenager, cool, discovered and pop music were a lexicon of disguised code words signifying the acceptance of drugs and arrived with and accompanied the Beatles wherever they went, to be discovered by teenagers. Incidentally, the word teenagers was never used until just before the Beatles arrived on the scene, courtesy of the Tavistock Institute for Human Relations.

Colemans own deep hatred seeps into his work:

I hate to use these beautiful words in the context of Beatlemania; it reminds me of how wrongly the word lover is used when referring to the filthy interaction between two homosexuals writhing in pigswill. To call rock music, is an insult, likewise the language used in rock lyrics.

Is there any collaboration for Colemans Committee of 300 claims?


Coleman claims to have heard Gorbachev referred to the Committee of 300 on CNN but no one has been able to confirm it and the clip has disappeared from the CNN archives. Proponents of the group often point to German industrialist Walter Rathenaus quote, but there is no indication that Rathenau was referring to an actual group rather than a number.

Three hundred men, all of whom know one another, direct the economic destiny of Europe and choose their successors from among themselves. Geschftlicher Nachwuchs, Neue freie Presse, Walter Rathenau, 1909

Original post:
Top Ten Secret Societies | Illuminati Rex

 Posted by at 1:41 pm  Tagged with:

First Amendment – National Constitution Center

 Misc  Comments Off on First Amendment – National Constitution Center
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

 Posted by at 11:40 am  Tagged with:

First Amendment – constitution |

 Misc  Comments Off on First Amendment – constitution |
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.


Originally posted here:
First Amendment – constitution |

Fifth Amendment to the United States Constitution – Wikipedia …

 Fifth Amendment  Comments Off on Fifth Amendment to the United States Constitution – Wikipedia …
Oct 262015

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to “an accusation or charge of crime,” or as involving oneself (or another person) “in a criminal prosecution or the danger thereof.”[34] The privilege against compelled self-incrimination is defined as “the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself…. “[35] To “plead the Fifth” is to refuse to answer any question because “the implications of the question, in the setting in which it is asked” lead a claimant to possess a “reasonable cause to apprehend danger from a direct answer”, believing that “a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”[36]

Historically, the legal protection against compelled self-incrimination was directly related to the question of torture for extracting information and confessions.[37][38]

The legal shift away from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th century in England.[39] Anyone refusing to take the oath ex officio mero (confessions or swearing of innocence, usually before hearing any charges) was considered guilty.[39] Suspected Puritans were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly used to compel “cooperation.” Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for “freeborn rights” were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell’s revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers. The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with 13 demands, third of which was the right against self-incrimination in criminal cases. These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.

Protection against compelled self-incrimination is implicit in the Miranda rights statement, which protects the “right to remain silent.” This amendment is also similar to Section 13 of the Canadian Charter of Rights and Freedoms. In other Commonwealth of Nations countries like Australia and New Zealand, the right to silence of the accused both during questioning and at trial is regarded as an important right inherited from common law, and is protected in the New Zealand Bill of Rights Act and in Australia through various federal and state acts and codes governing the criminal justice system.

In South African law the right to silence originating from English common law has been entrenched in Section 35 of the Constitution of the Republic of South Africa, 1996.

The Supreme Court has held that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”[40]

The Fifth Amendment privilege against compulsory self-incrimination applies when an individual is called to testify in a legal proceeding.[41] The Supreme Court ruled that the privilege applies whether the witness is in a federal court or, under the incorporation doctrine of the Fourteenth Amendment, in a state court,[42] and whether the proceeding itself is criminal or civil.[43]

The right to remain silent was asserted at grand jury or congressional hearings in the 1950s, when witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. Under the Red Scare hysteria at the time of McCarthyism, witnesses who refused to answer the questions were accused as “fifth amendment communists”. They lost jobs or positions in unions and other political organizations, and suffered other repercussions after “taking the Fifth.”

Senator Joseph McCarthy (R-Wisc.) asked, “Are you now, or have you ever been a member of the Communist party,” while he was chairman of the Senate Government Operations Committee Permanent Subcommittee on Investigations. Admitting to a previous communist party membership was not sufficient. Witnesses were also required to “name names,” to implicate others they knew to be communists or who had been communists in the past. Academy Award winning director Elia Kazan testified before the House Committee on Un-American Activities that he had belonged to the Communist Party briefly in his youth. He also “named names,” which incurred enmity of many in Hollywood. Other entertainers such as Zero Mostel found themselves on a Hollywood blacklist after taking the Fifth, and were unable to find work for a while in the show business. Pleading the Fifth in response to such questions was held inapplicable, since being a Communist itself was not a crime.

The amendment has also been used by defendants and witnesses in criminal cases involving the American Mafia.[citation needed]

The privilege against self-incrimination does not protect an individual from being suspended from membership in a non-governmental, self-regulatory organization (SRO), such as the New York Stock Exchange (NYSE), where the individual refuses to answer questions posed by the SRO. An SRO itself is not a court of law, and cannot send a person to jail. SROs, such as the NYSE and the National Association of Securities Dealers (NASD), are generally not considered to be state actors. See United States v. Solomon,[44]D. L. Cromwell Invs., Inc. v. NASD Regulation, Inc.,[45] and Marchiano v. NASD.[46] SROs also lack subpoena powers. They rely heavily on requiring testimony from individuals by wielding the threat of loss of membership or a bar from the industry (permanent, if decided by the NASD) when the individual asserts his or her Fifth Amendment privilege against compelled self-incrimination. If a person chooses to provide statements in testimony to the SRO, the SRO may provide information about those statements to law enforcement agencies, who may then use the statements in a prosecution of the individual.

The Fifth Amendment limits the use of evidence obtained illegally by law enforcement officers. Originally, at common law, even a confession obtained by torture was admissible. However, by the eighteenth century, common law in England provided that coerced confessions were inadmissible. The common law rule was incorporated into American law by the courts. The Supreme Court has repeatedly overruled convictions based on such confessions, in cases such as Brown v. Mississippi, 297 U.S. 278 (1936).

Law enforcement responded by switching to more subtle techniques, but the courts held that such techniques, even if they do not involve physical torture, may render a confession involuntary and inadmissible. In Chambers v. Florida (1940) the Court held a confession obtained after five days of prolonged questioning, during which time the defendant was held incommunicado, to be coerced. In Ashcraft v. Tennessee (1944), the suspect had been interrogated continuously for thirty-six hours under electric lights. In Haynes v. Washington,[47] the Court held that an “unfair and inherently coercive context” including a prolonged interrogation rendered a confession inadmissible.

Miranda v. Arizona (1966) was a landmark case involving confessions. Ernesto Miranda had signed a statement confessing to the crime, but the Supreme Court held that the confession was inadmissible because the defendant had not been advised of his rights.

The Court held “the prosecution may not use statements… stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation is initiated by law enforcement after a person has been taken into custody or otherwise deprived of his freedom of movement before being questioned as to the specifics of the crime.

As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Before any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” The warning to which Chief Justice Earl Warren referred is now called the Miranda warning, and it is customarily delivered by the police to an individual before questioning.

Miranda has been clarified by several further Supreme Court rulings. For the warning to be necessary, the questioning must be conducted under “custodial” circumstances. A person detained in jail or under arrest is, of course, deemed to be in police custody. Alternatively, a person who is under the reasonable belief that he may not freely leave from the restraint of law enforcement is also deemed to be in “custody.” That determination of “reasonableness” is based on a totality of the objective circumstances. A mere presence at a police station may not be sufficient, but neither is such a presence required. Traffic stops are not deemed custodial. The Court has ruled that age can be an objective factor. In Yarborough v. Alvarado (2004), the Court held that “a state-court decision that failed to mention a 17-year-old’s age as part of the Miranda custody analysis was not objectively unreasonable”.[48] In her concurring opinion Justice O’Connor wrote that a suspect’s age may indeed “be relevant to the ‘custody’ inquiry”;[49] the Court did not find it relevant in the specific case of Alvarado. The Court affirmed that age could be a relevant and objective factor in J.D.B. v. North Carolina where they ruled that “so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test”.[48]

The questioning does not have to be explicit to trigger Miranda rights. For example, two police officers engaging in a conversation designed to elicit an incriminating statement from a suspect would constitute questioning. A person may choose to waive his Miranda rights, but the prosecution has the burden of showing that such a waiver was actually made.

A confession not preceded by a Miranda warning where one was necessary cannot be admitted as evidence against the confessing party in a judicial proceeding. The Supreme Court, however, has held that if a defendant voluntarily testifies at the trial that he did not commit the crime, his confession may be introduced to challenge his credibility, to “impeach” the witness, even if it had been obtained without the warning.

In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court ruled 54 on June 21, 2004, that the Fourth, Fifth, and Fourteenth Amendments do not give people the right to refuse to give their name when questioned by police where a state’s stop and identify statutes obligate disclosure of such information.

In June 2010, the Supreme Court ruled in Berghuis v. Thompkins that a criminal suspect must now unambiguously invoke the right to remain silent. Unless and until the suspect actually states that he or she is relying on that right, his or her subsequent voluntary statement can be used in court and police can continue to interact with (or question) him or her. The mere act of remaining silent is, on its own, insufficient to imply the suspect has invoked those rights. Furthermore, a voluntary reply, even after lengthy silence, can be construed as implying a waiver.

Under the Act of Production Doctrine, the act of an individual in producing documents or materials (e.g., in response to a subpoena) may have a “testimonial aspect” for purposes of the individual’s right to assert the Fifth Amendment privilege against self-incrimination to the extent that the individual’s act of production provides information not already in the hands of law enforcement personnel about the (1) existence; (2) custody; or (3) authenticity, of the documents or materials produced. See United States v. Hubbell.

In Griffin v. California (1965), the Supreme Court ruled that a prosecutor may not ask the jury to draw an inference of guilt from a defendant’s refusal to testify in his own defense. The Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.[50]

While defendants are entitled to assert the privilege against compelled self-incrimination in a civil court case, there are consequences to the assertion of the privilege in such an action.

The Supreme Court has held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” Baxter v. Palmigiano,[51] “[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ‘Silence is often evidence of the most persuasive character.'”[52] “‘Failure to contest an assertion… is considered evidence of acquiescence… if it would have been natural under the circumstances to object to the assertion in question.'”[53]

In Baxter, the state was entitled to an adverse inference against Palmigiano because of the evidence against him and his assertion of the Fifth Amendment privilege.

Some civil cases are considered “criminal cases” for the purposes of the Fifth Amendment. In Boyd v. United States, the U.S. Supreme Court stated that “A proceeding to forfeit a person’s goods for an offence against the laws, though civil in form, and whether in rem or in personam, is a “criminal case” within the meaning of that part of the Fifth Amendment which declares that no person “shall be compelled, in any criminal case, to be a witness against himself.”[54]

In some cases, individuals may be legally required to file reports that call for information that may be used against them in criminal cases. In United States v. Sullivan,[55] the United States Supreme Court ruled that a taxpayer could not invoke the Fifth Amendment’s protections as the basis for refusing to file a required federal income tax return. The Court stated: “If the form of return provided called for answers that the defendant was privileged from making[,] he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld.”[56]

In Garner v. United States,[57] the defendant was convicted of crimes involving a conspiracy to “fix” sporting contests and to transmit illegal bets. During the trial the prosecutor introduced, as evidence, the taxpayer’s federal income tax returns for various years. In one return the taxpayer had showed his occupation to be “professional gambler.” In various returns the taxpayer had reported income from “gambling” or “wagering.” The prosecution used this to help contradict the taxpayer’s argument that his involvement was innocent. The taxpayer tried unsuccessfully to keep the prosecutor from introducing the tax returns as evidence, arguing that since the taxpayer was legally required to report the illegal income on the returns, he was being compelled to be a witness against himself. The Supreme Court agreed that he was legally required to report the illegal income on the returns, but ruled that the privilege against self-incrimination still did not apply. The Court stated that “if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the Government has not ‘compelled’ him to incriminate himself.”[58]

Sullivan and Garner are viewed as standing, in tandem, for the proposition that on a required federal income tax return a taxpayer would probably have to report the amount of the illegal income, but might validly claim the privilege by labeling the item “Fifth Amendment” (instead of “illegal gambling income,” “illegal drug sales,” etc.)[59] The United States Court of Appeals for the Eleventh Circuit has stated: “Although the source of income might be privileged, the amount must be reported.”[60] The U.S. Court of Appeals for the Fifth Circuit has stated: “…. the amount of a taxpayer’s income is not privileged even though the source of income may be, and Fifth Amendment rights can be exercised in compliance with the tax laws “by simply listing his alleged ill-gotten gains in the space provided for ‘miscellaneous’ income on his tax form.”[61] In another case, the Court of Appeals for the Fifth Circuit stated: “While the source of some of [the defendant] Johnson’s income may have been privileged, assuming that the jury believed his uncorroborated testimony that he had illegal dealings in gold in 1970 and 1971, the amount of his income was not privileged and he was required to pay taxes on it.”[62] In 1979, the U.S. Court of Appeals for the Tenth Circuit stated: “A careful reading of Sullivan and Garner, therefore, is that the self-incrimination privilege can be employed to protect the taxpayer from revealing the information as to an illegal source of income, but does not protect him from disclosing the amount of his income.”[63]

If the government gives an individual immunity, then that individual may be compelled to testify. Immunity may be “transactional immunity” or “use immunity”; in the former, the witness is immune from prosecution for offenses related to the testimony; in the latter, the witness may be prosecuted, but his testimony may not be used against him. In Kastigar v. United States,[64] the Supreme Court held that the government need only grant use immunity to compel testimony. The use immunity, however, must extend not only to the testimony made by the witness, but also to all evidence derived therefrom. This scenario most commonly arises in cases related to organized crime.

A statutorily required record-keeping system may go too far such that it implicates a record-keeper’s right against self-incrimination. A three part test laid out by Albertson v. Subversive Activities Control Board,[65] is used to determine this: 1. the law targets a highly selective group inherently suspect of criminal activities; 2. the activities sought to be regulated are already permeated with criminal statutes as opposed to essentially being non-criminal and largely regulatory; and 3. the disclosure compelled creates a likelihood of prosecution and is used against the record-keeper. In this case, the Supreme Court struck down an order by the Subversive Activities Control Board requiring members of the Communist Party to register with the government and upheld an assertion of the privilege against self-incrimination, on the grounds that statute under which the order had been issued was “directed at a highly selective group inherently suspect of criminal activities.”

In Leary v. United States,[66] the court struck down the Marijuana Tax Act because its record keeping statute required self-incrimination.

In Haynes v. United States,[67] the Supreme Court ruled that, because convicted felons are prohibited from owning firearms, requiring felons to register any firearms they owned constituted a form of self-incrimination and was therefore unconstitutional.

Courts have given conflicting decisions on whether forced disclosure of computer passwords is a violation of the Fifth Amendment.

In In re Boucher (2009), the US District Court of Vermont ruled that the Fifth Amendment might protect a defendant from having to reveal an encryption password, or even the existence of one, if the production of that password could be deemed a self-incriminating “act” under the Fifth Amendment. In Boucher, production of the unencrypted drive was deemed not to be a self-incriminating act, as the government already had sufficient evidence to tie the encrypted data to the defendant.[68]

In January 2012 a federal judge in Denver ruled that a bank-fraud suspect was required to give an unencrypted copy of a laptop hard drive to prosecutors.[69][70] However, in February 2012 the Eleventh Circuit ruled otherwise – finding that requiring a defendant to produce an encrypted drive’s password would violate the Constitution, becoming the first federal circuit court to rule on the issue.[71][72] In April 2013, a District Court magistrate judge in Wisconsin refused to compel a suspect to provide the encryption password to his hard drive after FBI agents had unsuccessfully spent months trying to decrypt the data.[73][74]

Corporations may also be compelled to maintain and turn over records; the Supreme Court has held that the Fifth Amendment protections against self-incrimination extend only to “natural persons.”[75] The Court has also held that a corporation’s custodian of records can be forced to produce corporate documents even if the act of production would incriminate him personally.[76] The only limitation on this rule is that the jury cannot be told that the custodian personally produced those documents in any subsequent prosecution of him or her, but the jury is still allowed to draw adverse inferences from the content of the documents combined with the position of the custodian in the corporation.

As a condition of employment, workers may be required to answer their employer’s narrowly defined questions regarding conduct on the job. If an employee invokes the Garrity rule (sometimes called the Garrity Warning or Garrity Rights) before answering the questions, then the answers cannot be used in criminal prosecution of the employee.[77] This principle was developed in Garrity v. New Jersey, 385 U.S. 493 (1967). The rule is most commonly applied to public employees such as police officers.

In Boyd v. United States,[78] the U.S. Supreme Court stated that “It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove”.

On June 1, 2010, the Supreme Court ruled in Berghuis v. Thompkins that the right was non-self-executing and a criminal suspect must specifically invoke the right against self-incrimination in order for constitutional protections to apply.[79] The case centered around the interrogation of murder suspect Van Chester Thompkins, who remained virtually silent for hours, before giving a few brief responses to police questions. Most significantly, Thompkins answered “yes” when asked, “Do you pray to God to forgive you for shooting that boy down?” The statement was introduced at trial and Thompkins was convicted. In a 5-4 ruling, the Court held that criminal suspects who do not clearly state their intention to remain silent are presumed to have waived their Fifth Amendment rights. Ironically, suspects must speak in order for their silence to be legally protected. The new rule will defer to police in cases where the suspect fails to unambiguously assert the right to remain silent.

The Supreme Court extended the standard from Berghuis v. Thompkins in Salinas v. Texas in 2013, holding that a suspect’s silence in response to a specific question posed during an interview with police when the suspect was not in custody and the suspect had been voluntarily answering other questions during that interview could be used against him in court where he did not explicitly invoke his Fifth Amendment right to silence in response to the specific question.[80] Of the five justices who concluded that the suspect’s silence could be used against him in these circumstances, Justices Alito, Roberts and Kennedy concluded that the defendant’s Fifth Amendment claim failed because he did not expressly invoke the privilege. The other two Justices, Thomas and Scalia, concluded that the defendant’s claim would fail even if he had invoked the privilege, on the theory that the prosecutor’s comment at the trialregarding the defendant’s silence in response to a question during the police interviewdid not compel the defendant to give self-incriminating testimony.[81] The Court stated that there was no “ritualistic formula” necessary to assert this privilege, but that a person could not do so “by simply standing mute.” If an individual fails to invoke his right, and is later charged with a crime, the prosecution may use his silence at trial as evidence of his guilt.[82]

Read the rest here:
Fifth Amendment to the United States Constitution – Wikipedia …

International Encyclopedia of Economic Sociology: Libertarianism

 Misc  Comments Off on International Encyclopedia of Economic Sociology: Libertarianism
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).

Notablog Posts (previous and next)



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


Excerpt from:
International Encyclopedia of Economic Sociology: Libertarianism

First Amendment – Text, Origins, and Meaning

 Misc  Comments Off on First Amendment – Text, Origins, and Meaning
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.

View original post here:
First Amendment – Text, Origins, and Meaning

 Posted by at 9:40 am  Tagged with:

Free speech – OpenLearn – Open University

 Free Speech  Comments Off on Free speech – OpenLearn – Open University
Oct 192015

David Edmonds: This is Ethics Bites, with me David Edmonds.

Nigel Warburton: And me Nigel Warburton.

David: Ethics Bites is a series of interviews on applied ethics, produced in association with The Open University.

Nigel: For more information about Ethics Bites, and about the Open University, go to

David: For John Stuart Mill the limit of freedom of speech in a civilized society was roughly the point where a speaker was inciting violence. But perhaps it isn’t as simple as that. For free speech, in the well-known example, doesnt entitle us to shout “Fire! in a crowded theatre. Where then should we draw the line, and why? Tim Scanlon, Professor in Harvard Universitys philosophy department, has spent much of his career reflecting about issues of toleration and free speech. His initial writings on the topic stressed that the value of free speech lay in autonomy in particular, the right of individuals to have access to information so as to be able to think for themselves. Now he has a more nuanced view which takes into account the interests of both speaker and listener, and empirical considerations about the danger of granting powers of regulation to the state.

Nigel: Tim Scanlon, welcome to Ethics Bites.

Tim Scanlon: Im glad to be here. Thank you very much.

Nigel: Now the topic were focusing on today is free speech. Presumably youre an advocate of free speech at some level, but lets start by getting clear what do we mean by free speech?

Tim: By free speech I mean the need for restrictions on the way in which governments can regulate speech. Whether speech is free in a further sense, that is whether people have opportunities, is a very important thing, but its not the issue of free speech.

Nigel: Thats really interesting, because you immediately began by talking about regulation and controlling what can be said.

Tim: Well certainly speaking is not without costs: what people can say can cause injury, can disclose private information, can disclose harmful public information. Its not a free zone where you can do anything because nothing matters. Speech matters. But because it matters its very important that governments who want to regulate speech, for example to prevent things that would be embarrassing to politicians, or otherwise upset the government, its important that that power should be restricted.

Nigel: The word speech seems to imply something spoken, but clearly speech stands for expression here, its not just speech is it?

Tim: No, its not just speech. In one respect, what defines our thinking about free speech is not the particular acts that constitute speech, but rather the reasons one has for wanting other people to notice for wanting to make some kind of communication with others. Speech is just one way of doing it. How you dress, how you act in public. All those things can signal to other people your values, what kind of life you favour, and the fact that the way you act, as well as the way you speak, can signal those things provide reasons for other people to want to prevent you from doing those things – because they dont want those signals to be out there in the public space. The question of free speech is the question of how that impulse to regulate what can be out there in the public space need itself be controlled.

Nigel: Ok, well lets think about the justifications for controlling free speech. Youve devoted quite a lot of your life to thinking philosophically about the limits of toleration. Whats the philosophical underpinning of your position?

Tim: Well one philosophical underpinning in driving any of this has to be understanding the reasons why people should care about having these opportunities that might be restricted. I began by talking about how free speech has to do with limitations on government power. But of course the value thats at stake is affected by things other than what the government does, its also affected by how corporations can control access to television and other important media. So here we have two sides. On the one hand, philosophically one of the first things you want to do in understanding free speech is to understand what are the values that are at stake, why should we care about it? Thats much broader than the question of government regulation. On the other hand, if you think mainly in terms of constitutional provisions, restrictions on the law, there were talking particularly about government.

Nigel: Often people talk about free speech as arising from individual autonomy. We should have a freedom to be who we are and to express ourselves in the way that we wish to. Its a basic right of humans to express themselves…

Tim: I dont know if I want to say its a basic right. I want to say that people have reasons, all kinds of reasons, to want to be able to express themselves. Although when were talking about the permissible limits on speech we need to focus not only on the interests that people have in wanting to get their own ideas out there, but also the interests that people have as potential audience members to have access to what other people want to say. Philosophical discussions of the topic divide, to some extent, as to whether they focus mainly on speaker values or audience values, and I think its important to take both into account.

Nigel: OK, well with speaker values the justification tends to be in terms of autonomy; but with audience values we start talking about the consequences for the audience. The classic case there is with John Stuart Mill talking about the limits of free speech being set at the point where you harm another individual.

Tim: Thats true although, in a way, autonomy based views on the whole tend to focus on audience values – because its the audience who wants to have access to information to make up their minds. In so far as autonomy refers to the interests we have in being able to form our own opinions about how to live, what to do, how to vote, an autonomy based view tends to focus on audience values. By and large we think of speakers as already knowing what they want and what they value, and wanting to express it. Thats a kind of freedom: but it may not be helpful to call it autonomy. In general, its a case of once burnt twice shy. That is, having originally in my first publication given a theory of free speech that focused on autonomy, Ive since come to think that its a word thats probably a good idea to avoid. Because it can mean so many different things. On the one hand it can mean freedom, that is the ability to do things, on the other hand it can be a particular value, or in Kants case a particular inner power. Its a misused word so I like to avoid it.

Nigel: Perhaps it would be easier to focus on a particular case to bring out the sort of considerations that are relevant here. If we take the case of people expressing contempt for a particular racial group – some people might argue that is a consequence of free speech that people should be allowed to say offensive things. How would you approach that case.

Tim: Well there seems to be a divide on this across different countries. That is, in the United States the law and much of academic opinion is much more in favour of the idea that free speech is incompatible with having laws that ban speech simply because theyre offensive – laws for incitement against racial hatred or expressing contempt for other groups are by and large held to be unconstitutional in the United States whereas in Britain, France, Canada, laws are quite different.

Now Im in this sense typical of my country. Im inclined to be rather suspicious of laws that restrict speech on the grounds that it gives offence to a particular group. Not that I favour speech that does that, I think its terrible; the question is whether you want to have a law that restricts it. And the natural question is why on earth shouldnt you? After all it does harm people. Immigrant groups, racial minorities, are in a vulnerable position vulnerable because they suffer from status harm. Widespread opinion that they are in some way inferior, ought not to be associated with, ineligible for various jobs, and so on.

So why shouldnt speech that supports and perpetuates those attitudes be restricted? The problem is that there are so many ways in which speech can be offensive to different people, that if we start allowing offence to be a ground for restriction its very easy to generalise it, and the restrictions on speech, particularly on political speech, become too tight in my opinion.

Now theres an empirical question here, and I think the jury is out. Canada has laws against speech that foments racial hatred, and Britain does, and so on. So against the free speech advocates of my sort you can say, well they have these laws, the sky hasnt fallen. Political speech continues. On the other hand race relations havent improved much either. So the jury is to some degree out. And with respect to the UK I think its fair to say that a somewhat greater tolerance for restrictions on expression hasnt served the political culture well. Theres also much more tolerance of restrictions on disclosures of official secrets and so on and I think these havent helped political discussion in the UK. So I think the US has benefited to some degree to what might seem to some people an overly rigorous protection of free speech.

Nigel: That strikes me as a slippery slope argument: the idea that you cant take one step down the slope without ending up at the bottom. So you cant take one step by restricting certain sorts of hateful speech because the consequence will be that all kinds of other sorts of speech will be restricted.

Tim: Well in the first instance its not a slippery slope argument. It is a question about what would be the effect of having that particular restriction. So I think the case turns on that. I then move to saying if you look more generally, the more permissive attitude towards restrictions on speech hasnt been a good thing. The view of free speech that Ive come to does give a heavy weight to calculations of that kind. The question is, is a particular regulatory power, the power to restrict speech on certain grounds, is that a power we can give to government without placing important speaker and audience interests unacceptably at risk? Thats the question. And the view that there is a right to speak in certain ways comes down to the claim that if the government were allowed to prevent speech of that kind that would be a dangerous power, that we shouldnt allow, because the values of being able to speak and the values of being able to have access wouldnt be adequately served; and thats an empirical question which powers are dangerous, but thats my view.

Nigel: And the danger that youre speaking of, is that the danger that effective government wont be possible because there wont be sufficient airing of different views?

Tim: Thats one value. That is preserving the kind of opportunity to speak and influence people, and the kind of opportunity on the part of voters to be informed that we need to have a functioning democracy. Thats certainly one value. But there are also more personal values. People have good reason outside of politics to want to be able to influence the development of their society culturally, to express their attitudes about sex about art about how to live. Audiences benefit from having access to these expressions. We want to hear a diversity of views.

On the other hand people want to protect what the dominant attitudes in society are. They dont want people to express permissive attitudes towards sex or attitudes about religion that they disagree with, because that may cause the culture to evolve in ways in which they would prefer it didnt evolve. We all have feelings of that kind; I dont think its just these awful intolerant people. I feel that my society places a greater emphasis on sex, sexual attractiveness and so on than would be desirable. I dont like living in a society thats saturated with these feelings; but thats the price of living in a free society.

I also think religion is growing in its influence and so the sense that one ought to be religious or pay deference to religion is growing in strength in the United States, from my point of view that doesnt make it a society more like the one I would like to live in. But thats the price of living in a free society. There are these ebbs and flows of cultural opinion and if you want to live on terms of freedom with other people you have to be willing to accept the society that results from everybody having access to a public space you just have to accept it.

Nigel: I can see how censoring somebodys political opinions might be dangerous to good government. But censoring somebodys freedom to print pornographic images for instance, how can that harm good government?

Tim: My point in my answer to your last question was that providing the conditions necessary for good government isnt the only thing thats at stake in free speech. People who have views about, say, particular sexual relations, want to be able to express this not only as a matter of self expression, but they want to be in contact with other people who have similar views. And when regulation of that kind of expression is allowed the first thing thats likely to happen is that the minority views of this are the most likely to get restricted, and I think thats a cost. I dont like living in a society where there’s lots of pornography and people very interested in that, but, youve got to live with it.

Nigel: Another area where its difficult to see where to draw the line is with factual information that could be used in terrorist activity. So for instance if somebody wants to publish the details of how to make a certain kind of bomb on the internet, is it appropriate to censor them?

Tim: I think it is. I dont think we dont have an interest in access to information about how to manufacture bombs which is parallel to our interest to wanting to have information about what the government is actually doing, or to be able to communicate with others about sexual, moral or religious matters. So I dont think theres a similar threat to our interests as potential speakers or to our interests as audiences who want to be able to form our opinion about things if technical information about armaments and explosives is restricted.

The main worry there seems to me to be at the margin; whether some kinds of information about technical questions about military armaments become important political things that we need to know about. Like we need to know whether a missile defence system would actually work! Now theres a fair amount of distance between having a recipe for making nerve gas at home and having some information about how well the governments attempt to build a missile defence system have actually worked. But in between, there might be a worry. But on the whole Im relatively comfortable with the idea that technical information about the production of armaments is something that its permissible to regulate.

Nigel: Weve talked quite a lot about the differences between the law in the States and the UK, Im intrigued to know whether you think that the kinds of principles that you come up with in your philosophy are universalizable across societies and countries, or whether they are restricted to the particular circumstances of particular countries at particular times?

Tim: On the whole I come down on the universal side. I once had an experience speaking to a seminar that involved people from 27 different countries, academics and non academics. And theyd asked for a presentation on free speech. So I said the question of free speech is the question of whether the power to regulate speech in a certain way is the power that its too dangerous for governments to have. And thats a question of whether, if they had that power, the interests of speakers or audiences would be unduly restricted. And those who believe in free speech also have to believe that we should forbid governments from having this power at acceptable cost. And in the discussion, people all objected; they said your discussion entirely focused on things in the United States. It maybe alright in the United States to prevent the government from restricting speech, but that wouldnt work in India, someone said. Because in India if you allowed people to say certain things, then some people would riot. And a Turkish man said, a man in our law school thinks that bourgeois rights are nonsense, and obviously he cant be allowed to say that kind of thing; but you dont have that problem in the United States. The effect of this discussion was to reinforce my universalist tendencies and to think that things arent that different all over. Because, of course, exactly those questions come up in almost any society.

Now of course societies vary; the risks may be greater in some societies than in others. But on the whole theres a lot of commonality there. As far as the question of riots is concerned, this is whats known in the United States legal arguments as the hecklers veto. If you allow the threat of a riot to be a reason to prevent somebody from speaking all a group has to do to stop somebody from speaking is to threaten to riot. So the first response of the State has to be to stop the riot or put the speech in a venue where it can be protected; those are things the state can do.

Places where people dont believe in free speech, I think they dont believe in free speech largely for the reasons Ive just mentioned, they may think, well in a stable society its ok, but for us the risks are too great. Its possible that sometimes theyre right about that, but on the whole I think its a matter of not having enough faith in your fellow citizens and being too worried about what the consequences will be. Of course its in the interests of governments to encourage these fears, because its in the interests of governments to be able to regulate speech. Not because theyre evil, but just because theyre people who have their objectives and they want to be able to pursue those objectives in what seems to be the most effective way. Governments everywhere have reason to want to restrict speech; so everywhere we need laws to prevent them from doing that.

Nigel: Free speech is one of those ideas that people are prepared to die for. How would you place free speech relative to other important rights or ideas that animate people in political situations?

Tim: Well free speech first has a particular instrumental value, because its very important as a way of preventing other kinds of rights violations. People can be imprisoned in secret and one of the best ways of trying to stop that kind of thing is to try to bring it into the public sphere where political opposition can be mobilised. So freedom of speech has an important instrumental role in protecting other rights. There are cases where freedom of speech can seem to conflict with other rights. For example the right to a fair trial. In order to have a fair trial we need to prevent people from being convicted in advance in the press, so the jury cant be convened that won’t already have made up its mind about guilt. That is a clash.

When there is a clash of values of that kind one has to try to work out a strategy to deal with it. I think on the whole, by sequestering juries, by allowing defence attorneys to examine juries in advance and to ask them about their prejudices, on the whole I think one can protect the right to a fair trial, without placing many restrictions on what can be said. I dont want to say there is never a conflict, there can be, but I think on the whole its possible to work them out.

Nigel: Tim Scanlon, thank you very much.

Tim: Thank you, its been a pleasure talking with you.

David: Ethics Bites was produced in association with The Open University. You can listen to more Ethics Bites on, where youll also find supporting material, or you can visit to hear more philosophy podcasts.

See the original post:
Free speech – OpenLearn – Open University

 Posted by at 10:44 pm  Tagged with:

Annenberg Classroom – Fifth Amendment

 Fifth Amendment  Comments Off on Annenberg Classroom – Fifth Amendment
Oct 192015

Fifth Amendment – The Text No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fifth Amendment – The Meaning Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

See original here:
Annenberg Classroom – Fifth Amendment

 Posted by at 9:43 am  Tagged with:

The best islands in Southeast Asia

 Islands  Comments Off on The best islands in Southeast Asia
Oct 182015

Coral and Raya Islands Off Phuket’s southern coast lie a number of small islands whose pristine shores lure scuba divers and beach bums away from the mainland. Most of these isolated islands are undeveloped, but the notable exceptions are Coral Island and Ko Raya (also known as Ko Racha) which have accommodation options and restaurants. Both islands have safe swimming, reefs teeming with aquatic life, and a sense of getting away from it all that’s harder and harder to come by in Phuket proper. Coral Island is read more about Coral and Raya Islands

Ko Adang Far out in the Andaman Sea, the formidable mountains of Ko Adang rise over Ko Lipe like a protective uncle. The two islands are so close together that if arriving to Lipe at Pattaya Beach, you may very well assume that Adang’s lushly forested southern eminence is part of Lipe’s interior. In fact, the two neighbours could hardly be more different. While both islands are technically part of Tarutao National Park, development and mass tourism have taken a firm hold on Lipe. In contrast, Adang read more about Ko Adang

Ko Bulon Lae Kicking a football in the sea breeze, school kids laugh on their beachside field. Local sea gypsies smile at backpackers and families who lounge outside their simple bungalows. Flowers and butterflies abound. Away from the over-development and other problems found on more popular Thai islands, Ko Bulon Lae quietly preserves its rural tranquility. If that sounds wonderful, well, it truly is. But it takes a special sort of person to appreciate this one-of-a-kind island in the Andaman Sea. read more about Ko Bulon Lae

Ko Chang Sometimes called the Beast of the East thanks to its sheer mass and location in the eastern Gulf of Thailand near Cambodia, Ko Chang might just be the quintessential Thai island destination. From breathtaking mountains to idyllic beaches, hippy hangouts to salubrious resorts, and traditional fishing villages to neon nightlife, Elephant Island truly has something for everyone. Some say that Ko Chang’s name derives from its shape on a map that somewhat resembles the head of an elephant. read more about Ko Chang

Ko Chang Noi Not to be confused with the far bigger and better known Ko Chang of Trat province in the Gulf of Thailand, little Ko Chang or, as we have always known it, Ko Chang Noi is a formidable destination in its own right. One of Thailand’s quietest, most relaxed, and undeveloped islands, Ko Chang Noi makes up for its lack of sparkle with an artsy, laid back atmosphere you’ll find nowhere else. Don’t expect luxury resorts and bus loads of short-term holiday makers but rather rustic read more about Ko Chang Noi

Ko Jum The little-known Andaman island of Ko Jum (aka Ko Pu) strikes an ideal balance of great beaches, thin crowds and ultra-relaxing atmosphere. With mass tourism having been left to neighbouring Ko Phi Phi and Ko Lanta, Jum’s Muslim residents have happily preserved their traditional lifestyle. So enchanting is Ko Jum that we’ll go out on a limb to call it one of our favourite Thai islands. Colourful fishing hamlets dot the east coast, where longtail boats bob amid the seaside villages and read more about Ko Jum

Ko Kham An idealic little blink-and-you’ll-miss-it island barely a kilometre from Ko Maak, Ko Kham was once the perfect spot to really get away from it all. Crystal-clear waters and a number of coral reefs made the island popular with the snorkelling crowd and many boat outings from Ko Chang stopped here for an hour or two to have a look into the not-so-deep. A series of black volcanic rocks jut out of the snow-white sand on the island’s eastern beach, and for those on the island they made for read more about Ko Kham

Ko Kho Khao Just a ten minute boat ride from the Takua Pa area of Phang Nga province, Ko Kho Khao (pronounced kaw koe cow) doesnt look very different from the mainland. However, for those seeking a family beach destination thats not as remote as nearby Ko Phra Thong but not as busy as Khao Lak or Phuket, Kho Khao is worth a visit. The islands long golden beaches are the main draw, and aesthetically these are similar to the beaches of the Khao Lak area further south. The waters are slightly murky read more about Ko Kho Khao

Ko Kradan A thin slip of an island off the coast of Trang province, Ko Kradan boasts a gorgeous white-sand beach stretching between fluffy green hills and the cerulean blue Andaman Sea. Also home to some good snorkelling and low-tide sandbars that make for the beach walk of a lifetime, Kradan is among Thailand’s more visually spectacular islands. With some advanced planning, anyone from solo gap-year backpackers to groups of old friends to honeymooning couples and flashpacking families can enjoy a read more about Ko Kradan

Ko Kut We’re going to go out on a limb and declare Ko Kut (also spelt Ko Kood) to be the most beautiful island we’ve seen in Thailand over two decades of travel to the kingdom. There. We said it. It really is just drop dead gorgeous. And we strongly recommend you add it to your itinerary the next time you holiday in Thailand. Set to the south of better known Ko Chang and Ko Maak, Ko Kut is a large, mountainous island whose interior remains largely jungle covered and whose western and southern read more about Ko Kut

Ko Lanta Lanta. The word alone conjures daydreams of lazing in a hammock, soothed by tepid waves and refreshed by the juice of coconuts that collect on the sand. The exact meaning is unknown, but the island’s old Malay name of Pulao Satak translates as Long Beach Island. Four splendid stretches of powder-white sand span several kilometres each on Ko Lanta, with many more secluded beaches just waiting to be lounged upon. First discovered by Scandinavian backpackers in the 1980s, this long and slender read more about Ko Lanta

Ko Lao Liang If you thought that all of Thailands finest islands had been ruined by mismanaged development, Ko Lao Liang will prove you wrong. A little-known remedy for travellers seeking breathtaking Andaman Sea scenery without the crowds, the isolated pair of islands dont even register among Trang provinces more popular destinations. And we hope it stays that way. Part of Mu Ko Phetra National Park, Ko Lao Liangs two islands stand side-by-side some 40 kilometres west of the mainland. All read more about Ko Lao Liang

Ko Libong The largest but certainly not busiest island in Trang province, Ko Libong lulls travellers into a simpler state of mind with its unusual landscapes, deep starry nights and Muslim fishing villages uninfluenced by mass tourism. Lucky visitors might catch a glimpse of an endangered dugong, but all will depart with a sense of experiencing something completely different. Close cousins of the manatee and more distantly related to elephants, around 130 chubby and amiable dugongs, also known as read more about Ko Libong

Ko Lipe In the early 1990s, whispers of an unspoilt island far out in Thailand’s Andaman Sea began surfacing among backpackers. With dazzling white-sand beaches touched by crystal-clear water that sheltered vibrant marine life, Ko Lipe was everything it was cracked up to be. Though it remains tremendously beautiful today, mass tourism is pushing Lipe in a worrisome direction. Those who appreciate their luxuries and want to avoid the bigger resort islands will probably find everything they desire on read more about Ko Lipe

Ko Maak Just a few kilometres south of Ko Chang but a world away from its heavy development lies Ko Maak, undoubtedly an overlooked gem in Thailand’s crown. Ideal for those who prefer the quiet life, this decidedly rural island has so far escaped the grasp of major developers. Though a sprinkle of tasteful new resorts have appeared in recent years, it appears that Maak will remain a sleepy, family-friendly destination for the foreseeable future. Ko Maak is blessed with long stretches of read more about Ko Maak

Ko Muk A quintessential island paradise Ko Muk is not, but its decent beaches, affordable accommodation and terrific day-trips draw a handful of travellers each high season. Also commonly spelt Ko Mook, the mid-size island sits off the coast of Trang province in the Andaman Sea and supports a modest Muslim-Thai lifestyle focused on fishing. The only part of Ko Muk ever seen by many travellers is the spectacular Tham Morakot, or Emerald Cave. After swimming through a dark sea cave, you read more about Ko Muk

Ko Mun Nork The blip of an island of Ko Mun Nork rarely finds itself on the itinerary of roving backpackers and travellers — partly due to the cost of the resort, but also because it can only be visited as a part of an organised trip. Ask many Bangkok residents though and you’ll quickly hear some of the rave reviews Ko Mun Nork receives — both as a romantic weekend getaway, but also for the occasional parties thrown on the island — parties which are very much invite only. Private label raves and read more about Ko Mun Nork

Ko Ngai If you’re after a romantic beach holiday on a beautiful island and don’t mind paying a premium for it, Ko Ngai is worth considering. Sitting quietly amid a scenic patch of the Andaman Sea with plentiful coral, Ngai hosts a long sliver of blondish-white sand with views to distant limestone karsts and the mainland. The tiny island doesn’t have much character, but it offers plenty of comfort. Officially part of Ko Lanta National Park, Ko Ngai (also spelt Hai) is easily reached during high read more about Ko Ngai

Ko Pha Ngan Although best known for the monthly full moon parties, which attract thousands of travellers from all over the globe, there is a lot more to stunning Ko Pha Ngan than getting trashed and passing out in the powder-soft white sand. The mid-sized and quite mountainous island (it stretches over 168 sq km and 70% of its topography is mountainous jungle with the remainder beaches and coconut groves) is situated roughly a third of the way from Ko Samui to Ko Tao. The island’s original inhabitants read more about Ko Pha Ngan

Ko Phayam Ko Phayam boasts long uncrowded beaches, plenty of walking trails, some jungle, lots of birdlife, roads without cars and one small village. Sounds good? Read on. Until a few years ago, few tourists had heard of this quiet laidback island on the Andaman coast near the Burmese border. It’s still pretty unspoiled compared to many Thai islands but the number of tourists has increased significantly over the past few years. Tourists of all ages and backgrounds visit but they are nearly all read more about Ko Phayam

Ko Phi Phi Ko Phi Phi, or Phi Phi Island, is one of the most talked about places in Southeast Asia, with its natural beauty and reputation for good times putting it firmly on the tourist trail. The beauty of the island is unparalleled, even in a region of the world renowned for its stunning destinations. Limestone cliffs, turquoise waters, white sand beaches and miles of trackless forest make Phi Phi a perfect tropical island. Developments over the past 20 years however have made it the subject of read more about Ko Phi Phi

Ko Phra Thong In Thai, phra thong means golden Buddha, and a legend tells of how a valuable solid gold Buddha image was buried somewhere on the island hundreds of years ago. Any treasure hunters seem to have given up their searches long ago, which isn’t surprising given Ko Phra Thong’s unforgivingly hot and expansive savannah landscape. Totally unique not only in Thailand but all of Southeast Asia, visitors to Ko Phra Thong often remark that the landscape looks strikingly similar to the savannahs of read more about Ko Phra Thong

Ko Ra Despite its relatively close proximity to the town of Khuraburi along Thailand’s west coast, the long, thin and rugged island of Ko Ra is one of the country’s more remote islands with accommodation, and is a good choice for those seeking an offbeat, eco-minded destination. With most of the island protected as a wildlife sanctuary, this is a chance to experience a lush, untamed landscape. Ko Ra Ecolodge, which offered a wide range of activities, has recently closed and though we haven’t read more about Ko Ra

Ko Rawi Unspoilt Ko Rawi arguably boasts the best beaches of any island in the Adang archipelago — and that’s saying a lot. A smidgen smaller than neighbouring Ko Adang, Rawi has a similarly rugged interior to go with far more rudimentary national park services. Most visitors only stop here for lunch during a boat tour from Ko Lipe, but it’s possible to pitch a tent for a longer stay. Separated only by a one-km-wide channel, Rawi and Adang look like a healthy pair of twins when viewed on a map. read more about Ko Rawi

Ko Rok Brilliant white-sand beaches, crystal-clear water, expansive coral reefs and metre-long monitor lizards: welcome to Ko Rok. Protected as part of Mu Ko Lanta National Park, these gorgeous twin islands boast some of the finest snorkelling in Thailand’s Andaman Sea. Most come as a day trip, but it’s possible to hang around for extended stays during high season. Aesthetically similar to Ko Surin further north, Ko Rok refers to Ko Rok Nai (called the inner island since it’s closer to the read more about Ko Rok

Ko Samet As the closest major island to Bangkok, Ko Samet is one of the most popular places in Thailand to watch teal water caress feathery white sand shores. Its not the kingdoms most picturesque, enchanting or cleanest island, but Samet consistently draws droves of travellers seeking a quick, easy getaway from the Thai capital. One of the very first Thai islands to surface on the foreign traveller radar back in the 1970s, Samets old days of crashing in hammocks next to beach campfires are read more about Ko Samet

Ko Samui Back in the days when backpackers to Southeast Asia were first discovering Ko Samui in the 1970s, a basic thatched hut with running water and electricity was considered luxury. Now Ko Samui is home to some of Thailand’s best luxury resorts and in the popularity stakes is surpassed only by Phuket. With an international airport, a mass of ferry connections and close to 500 hotels and guesthouses, this is not somewhere to come to glimpse a corner of the Thai kingdom untouched by tourism read more about Ko Samui

Ko Si Boya The rural island of Ko Si Boya sits windswept and largely forgotten off the southern coast of Krabi province. The few travellers who make it here are far outnumbered by villagers, who themselves are outnumbered by cows and monitor lizards. While this is not the place to find idyllic beaches and luxury resorts, Si Boya doesn’t disappoint those seeking peace and quiet. Reachable via a 15-minute local ferry hop from the mainland villages of Laem Hin and Laem Kruat, this mid-size island mainly read more about Ko Si Boya

Ko Si Chang Ko Si Chang not to be mistaken with Ko Chang is an island two to three hours from Bangkok, in Chonburi province, 12 kilometres from the western shore of Siracha district and surrounded by eight smaller islands. Ko Si Chang is geographically the closest island to Bangkok, and often overlooked by tourists for more well known destinations. The small island is popular among Thais living in or near Bangkok and is a great place for a day trip with friends or a pleasant weekend with read more about Ko Si Chang

Ko Sukorn On calm and pastoral Ko Sukorn, water buffaloes outnumber the locals, and locals far outnumber the travellers. The not-so-easy-to-reach island is home to a slow-paced Muslim community that subsists mainly off agriculture and fishing, with tourism a distant third. Many of the few travellers who make it here settle in for extended stays, soothed to the bone by the time they leave. The dark-blue water off Sukorns shores doesnt strike the idyllic sapphire and turquoise shades that read more about Ko Sukorn

Ko Surin If Thailand’s tropical islands are the country’s crowned jewels, Ko Surin could be the brightest of them all. Protected as the Mu Ko Surin National Park, Ko Surin actually consists of two relatively small islands Ko Surin Nuea (north) and Ko Surin Tai (south) as well as a handful of islets and some magnificent underwater seascapes. Though many choose to visit on a daytrip, Ko Surin really warrants spending a night or two in order to adequately absorb the unspoilt natural beauty both read more about Ko Surin

Ko Tao Once jokingly referred to as a drinking island with a diving problem, Ko Tao has evolved far beyond backpackers diving and beach boozing. Today the island draws families, flashpackers and sports junkies alike. Visitors will find hiking trails of various levels of difficulty that end with the promise of picturesque views, extreme rock-climbing, live jam sessions where locals and tourists showcase their talents, beach barbecues accompanied by fire shows and even trapeze-flying classes. For such a read more about Ko Tao

Ko Tarutao The Malay word tarutao means old, mysterious, primitive. At 150 square km and with mountains reaching over 500 metres high, this rugged island does indeed stir up a primeval sense of awe. It’s no wonder that Thailand once banished convicted criminals here, and that the TV show, Survivor, chose this as one of its shooting locations. First occupied by only a handful of sea gypsies, Thailand sent more than 3,000 prisoners to work camps on Tarutao in the 1930s and ’40s. Common criminals were read more about Ko Tarutao

Ko Wai Azure water laps onto powdery beaches framed by distinctive rock formations. Vibrant tropical marine life dazzles the snorkellers. Draped in jungle and overgrown rubber groves, pristine hills dare visitors to discover hidden beaches and viewpoints. No roads or motorbikes; no blaring all-night parties; limited electricity, just primitive huts in paradise. Welcome to Ko Wai. This tiny island sits six kilometres south of Ko Chang’s southerly point, reachable via an easy cruise during high read more about Ko Wai

Ko Yao Noi Ko Yao Noi, or Small Long Island, sits halfway between Phuket and Krabi in the middle of Phang Nga Bay. Found just a 30-minute speedboat trip away from Phuket, Yao Noi’s tight-knit local Muslim community has led the island along a more low-impact, peaceful development path than its rowdy island neighbour. Yao Noi boasts a diverse and photogenic landscape with mangrove forests lining its west coast, a lush, pastoral interior and sandy east-coast beaches with superb views to the towering read more about Ko Yao Noi

Ko Yao Yai Ko Yao Yai, or Big Long Island, running about 30 kilometres in length from top to bottom, sits halfway between Phuket and Krabi in the middle of Phang Nga Bay. Though only a 25-minute speedboat trip from Phukets east coast, this long, narrow island ringed with thick mangroves and white-sand beaches has somehow avoided becoming another hectic island resort. Its more than twice the size of neighbouring Ko Yao Noi, but tourism development here lags behind its sister island. Yao Yais read more about Ko Yao Yai

Phuket Thailand’s largest island is its best example of the benefits and problems of tourism. Huge promotions of Phuket by the TAT and travel agents since Thailand first start attracting international travellers on a large scale in the 1980s have brought in millions of tourists and billions of baht — the province is visited by over a third of all international visitors to Thailand in any given year. But along with them has come unregulated development, severe environmental degradation, organised read more about Phuket

Similan Islands Some 50 km from the Thai western coast among open water in the Andaman Sea, the Similan islands are known far and wide to boast some of the most spectacular scenery and best snorkelling and diving of anywhere in Southeast Asia. With Malay roots, the word similan means nine in local Moken (sea gypsy) language after the nine tiny islands of the Similan archipelago. Along with magnificent underwater seascapes, the Similans boast some of the finest white sand, turquoise water beaches in Thailand, read more about Similan Islands

Koh Rong Koh Rong is quite possibly that cliched island paradise you’ve been looking for, boasting pristine white beaches, turquoise water and limited development on most of the island. For years the island was almost completely undeveloped save for a diving outfit and a few bungalows, though that’s changing, in particular on the southern patch Koh Touch. Serviced by the fast boat from Sihanoukville as the fourth stop, Koh Touch is a sandy guesthouse-packed stretch that has earned Koh Rong a read more about Koh Rong

Koh Rong Samloem Koh Rong Samloem is just 45 minutes by speedboat and yet a world away from Sihanoukville. The island of many spellings — it’s also known as Koh Rung Samloem, Koh Rong Saloem, Koh Rong Samlon and a few other variations — is owned by the Cambodian navy, which has a base there. As of late 2014 a development company awaits the approval of their plans for the island, with large signboards along the beach near M’Pay Bei village sticking out between the trees, reminding you of the future that read more about Koh Rong Samloem

Koh Sdach This small fishing village island sits at the half-way mark between Koh Kong and Sihanoukville within the Koh Sdach archipelago. Located a 15-minute boat-ride off the Cambodian coast, Koh Sdach is dominated by a sizeable fishing village that stretches along the side of the island that faces the mainland. While fishing is the mainstay of the local economy, the village also has a large ice-making plant, where you can watch the production and see the ice ferried off by boat to the surrounding read more about Koh Sdach

Koh Ta Kiev Only an hour away from the mainland, Koh Ta Kiev is one of the closest islands to Sihanoukville and is on the itinerary of many of the day trips and island tours that leave from the beach town. Few people stay overnight on the island though, which is a shame because it’s beautiful and has a few easily accessible beaches. Like most of the islands in Cambodia, Koh Ta Kiev has been leased to a foreign company — the same French outfit that owns, or has taken 99-year leases, on half of Koh read more about Koh Ta Kiev

Koh Thmei Koh Thmei is part of Ream National Park but this hasn’t stopped the government from selling a substantial amount of the island to the highest bidder. Right now the island is mostly empty; although a few families live on the island, there’s not so much as a village and the only current accommodation is the eight wooden bungalows that comprise Koh Thmei Resort. Their owners believe that they were allowed to open because of their eco-friendly policies; they power it by day using solar panels read more about Koh Thmei

Koh Tonsay Better known as Rabbit Island, Ko Tonsay is a lovely little island about 25 minutes away from Kep by hired boat, making it one of the most easily accessible of all the islands. It is also one of the least-developed, with no motor vehicles, no mains electricity and few residents, making it an ideal getaway from the grind. Boats leave the ferry port in Kep regularly throughout the day a return ticket will cost around $7 or pay $25 for a boat with enough seating for six to eight read more about Koh Tonsay

Koh Totang A small drop in the ocean at only 1.3 kilometres by 500 metres wide, Koh Totang is one of the 12 tropical islands that make up the Koh SDach Archipelago in the Gulf of Thailand. Midway between the Thai border and Sihanoukville approximately 60 kilometres in either direction Koh Totang is somewhat out of the way of the main island hotspots, with the likes of Koh Rong and Koh Rong Samloem significantly further south. Until 2014 it was also tricky to get to, requiring an uncomfortable read more about Koh Totang

Don Dhet Referred to by some as Khao San Road on the river, Don Dhet is a classic backpacker hub with just a fraction of the shenanigans that take place on Khao San Road. Now well-established on the backpacker trail through Laos, the number and quality of rooms on Don Dhet continues to climb steadily. The scenery is indeed beautiful and the ambience very relaxed, but Laos this is not. Anyone who tells you differently has eaten too many banana pancakes. If you’re on the way here expecting to read more about Don Dhet

Don Khon Far larger than Don Dhet, Don Khon is skipped by many budget travellers because most of the accommodation is midrange. However although there aren’t 40-odd places to choose from as on Don Dhet, there are budget options here and staying on Don Khon is far more of a Lao experience than Don Dhet. There is a better range of eateries than on Don Dhet and the options for cycling and walking are considerably more extensive. The main disadvantage or advantage depending on your point of view is that read more about Don Khon

Don Khong The largest island in the Si Phan Don area, Don Khong is nowhere near as popular as the more southern islands of Don Dhet, with its chilled-out atmosphere, and Don Khon which has more activities on tap. The interior of Don Khong is almost entirely given over to rice cultivation and a forested mountainous area, while just about all the accommodation is crammed into and around the sleepy town of Muang Khong, which is situated on the east coast of the island. The major pastime on Don Khong is read more about Don Khong

Cat Ba Island Nestled on the periphery of Vietnam’s fabulous Ha Long Bay, Cat Ba Island is big — more than 350 square kilometres — but most tourists see but a sliver of it. Put ashore as part of a three-day tour of Ha Long Bay, time is spent on organised treks or bike rides in the national park and tours of Monkey Island, or eating at one of the many seafood places around the harbour. But independent travellers shouldn’t rule out a stay. Three beaches are located near the harbour town — hardly world read more about Cat Ba Island

Con Dao Islands The Con Dao Islands (also known as Poulo Condore) are an archipelago of 15 islands situated in the South China Sea, around 250 kilometres, or a 45-minute flight, from Ho Chi Minh City. The island is famed for its grizzly past: due its remoteness, the French used the main island of Con Son (the largest island in the group) to keep anti-colonial protestors prisoner. The South Vietnamese continued the tradition, sending political dissenters and activists to the 11 prisons which were also used read more about Con Dao Islands

Phu Quoc Island Sitting back in a hammock, looking out over the quiet surf, you may wonder why more people don’t know about Vietnam’s Phu Quoc Island. It gets almost none of the press of those islands over in Thailand — and yet with its rugged jungle, squeaking white sands and sparkling cobalt waters, it more than matches them. Sadly, with a brand spanking new international airport and progressive visa-exemption scheme, this is slated to change in the coming years. Drive around the island and you can read more about Phu Quoc Island

Pangkor Island Pangkor Island is about a fifth of the size of Penang off Peninsular Malaysia’s west coast, midway between Kuala Lumpur and Penang. The word Pangkor is said to be a derivative of the Thai pang koh, which means beautiful island and yes, this gives a hint of what the island is like, with sandy shores and surrounding emerald waters. Pangkor is well regarded as a family-oriented and culturally diverse destination, so guesthouses and hotels are generally family friendly rather than party read more about Pangkor Island

Penang Malaysia’s second largest island, Penang is also its most developed, with the eastern coast dotted with high-rises and crammed with holiday resorts. Travellers who have experienced beaches elsewhere in Asia will probably be unimpressed with the most popular beach spots, but the island’s real attraction lies in its culture, history and cuisine. The main city of Georgetown boasts a meld of interesting architecture stretching from the British colonial era to the colourful multicultural read more about Penang

Perhentian Islands The Perhentian Islands are two main islands, along with a scattering of uninhabited islets, off the northeast coast of Peninsular Malaysia. They’ve long been renowned for their coral reefs and clear waters, snorkelling, diving, attractive beaches and remote, semi-untouched feel and appearance. The two inhabited islands, Perhentian Besar (Big Perhentian) and Perhentian Kecil (Small Perhentian) sit across a narrow body of water from one another and each boasts a collection of attractive read more about Perhentian Islands

Semporna and Sipadan Island Its name may mean perfect in the Malay language, but the seaside town of Semporna makes a poor first impression with its fishy smell and littered water. Thankfully for most travellers Semporna is not the destination but the gateway to some of the best scuba diving in the world at Sipadan and Mabul Islands. Sipadan Island has been something of a mecca for scuba divers ever since Jacques Cousteau described it as an untouched piece of art. More than 3,000 species of sea creatures have been read more about Semporna and Sipadan Island

Gili Air Gili Air is the closest to Lombok of the three Gili islands. In size, it lies between Meno and Trawangan, and has the largest normal community. Unlike Gili Meno and Gili Trawangan, Gili Air actually does have its own water source and you’ll notice immediately how much greener and overgrown it is compared to the other two far more arid islands. Much of the interior is given over to coconut cultivation, though tourists are proving themselves a more lucrative crop and slowly the palm read more about Gili Air

Gili Gede Gili Gede is arguably the best known of the Secret Gilis — a sprinkling of islands off the coast of southwest Lombok far lesser known than the Gilis of the northwest. Gili Gede lies among a group also comprising Gili Layan, Gili Ringgit and Gili Asahan — about halfway back to Lembar is a second cluster including Gili Nanggu and Gili Sudak. Of all these, Gili Gede has the broadest selection of accommodation. At time of writing (mid-December 2014) there was a single midrange resort on Gili read more about Gili Gede

Gili Meno Situated midway between Gili Trawangan and Gili Air, Gili Meno is the smallest and least developed of the three Gili islands. Peanut-shaped, with a brackish seawater lake towards its western coast, this arid island is ringed by a good selection of places to stay and is the most affordable of the three islands. As with the others, Gili Meno is encircled by a rather pretty white sand beach, and, as with Gili Air, there is some pretty good snorkelling to be had. While it is the least read more about Gili Meno

Gili Trawangan Gili Trawangan, or Gili T to its friends, is the largest of three islands scattered off Lombok’s northwest coast. While all three of these Gilis (Gili means island in the Sasak language of Lombok) are especially photogenic, each has a character of its own and attracts a certain crowd — in the case of Gili T, it’s the party set. It is a very pretty island. You’ll have near endless opportunity to take photos to make the office back home suitably jealous. The beaches here really are white sand read more about Gili Trawangan

Kanawa Island A beautiful island about one and a half hours by boat more or less due west of Labuan Bajo, Kanawa Island is a bit of a go-to location for backpackers and flashpackers looking for some downtime. The island is surrounded by a reef, some of which is in extremely good condition with an impressive range of sealife, from soft coral through to sting rays, sharks and turtles — and it’s easy swimming distance from the beach. The beach itself is also very attractive, with ample shade, and you’re read more about Kanawa Island

Karimunjawa Islands Think of your ideal tropical paradise. Once you have that in mind, if it includes white-sand beaches fringed by palm trees, turquoise water so bright it stings your eyes, warm weather all year round, hardly any tourists and just enough decent accommodation to ensure you dont have to pitch a tent then the islands of Karimunjawa are your paradise. Located about 90km off the north coast of Central Java, the idyllic group of 27 tropical islands that form the Karimunjawa Islands is one of read more about Karimunjawa Islands

Nusa Ceningan The sliver of land that makes up Nusa Ceningan lies directly to the south of Nusa Lembongan in the main channel between Lembongan and far larger Nusa Penida. The northern channel (Ceningan Strait) runs almost dry at low tide while the southern channel (Toyo Pakeh Strait) is a roaring flow with swirling eddies and very fast currents. The Ceningan Strait runs almost dry at low tide and is given over to seaweed cultivation at the western end. It’s also this channel that has the yellow read more about Nusa Ceningan

Nusa Lembongan Nusa Lembongan occupies a comfortable middle ground between well-trafficked Bali and relatively untouched Nusa Penida. It’s not as pretty as either of the other two islands, but it has a banquet of good places to stay, a friendly bunch of locals and makes for a comfortable time-out. Lembongan is known for two things: seaweed and surf. Seaweed cultivation and harvesting is what keeps the bulk of the local population busy. It is farmed off many of the beaches (likewise on neighbouring Nusa read more about Nusa Lembongan

Nusa Penida Nusa Penida dwarfs nearby Nusa Lembongan and Nusa Ceningan, yet is almost devoid of tourists. For all intents and purposes there are only three (yes, three) places even worth considering staying at, despite miles upon miles upon miles of beautiful beaches, an attractive hinterland and a generally unspoilt vibe about the place. Before you pack your bags, a couple of disclaimers: The vast majority of beaches, with the notable exception of Crystal Bay, are given over to seaweed farming. read more about Nusa Penida

Togean Islands The Togean — or Togian — Islands are an archipelago in the southeast region of the Tomini Sea in northern Sulawesi. Famous for both their difficulty to reach and diving, the archipelago is formed by seven primary islands situated near the centre of a global hotspot of biodiversity known as the coral triangle. Home to a great number of rare marine and terrestrial species, most tourists who come here are divers or snorkellers hoping to see some of the world’s best marine life in unspoiled read more about Togean Islands

See original here:
The best islands in Southeast Asia

Princes’ Islands – Lonely Planet

 Islands  Comments Off on Princes’ Islands – Lonely Planet
Oct 182015

Most stanbullus refer to the Princes’ Islands as ‘The Islands’ (Adalar), as they are the only islands around the city. They lie about 20km southeast of the city in the Sea of Marmara, and make a great destination for a day escape from the city.

You’ll realise after landing that there are no cars on the islands, something that comes as a welcome relief after the traffic mayhem of the city. Except for the necessary police, fire and sanitation vehicles, transportation is by bicycle, horse-drawn carriage and foot, as in centuries past.

All of the islands are busy in summer, particularly on weekends. For that reason, avoid a Sunday visit. If you wish to stay overnight during the summer months, book ahead. Many hotels are closed during winter.

There are nine islands in the Princes’ Islands group and the ferry stops at four of these. Year-round there are 15,000 permanent residents scattered across the six islands that are populated, but numbers swell to 100,000 or so during summer when stanbullus – many of whom have holiday homes on the islands – escape the city heat. The small islands of Knalada and Burgazada are the ferry’s first stops; frankly, neither offers much reward for the trouble of getting off the ferry.

In contrast, the charming island of Heybeliada (Heybeli for short) has much to offer the visitor. It’s home to the Deniz Lisesi (Turkish Navel Academy), which was founded in 1773, and which you’ll see to the left of the ferry dock as you arrive, and it has a number of restaurants and a thriving shopping strip with bakeries and delicatessens selling picnic provisions to day-trippers, who come here on weekends to walk in the pine groves and swim from the tiny (but crowded) beaches. The island’s major landmark is the hilltop Hagia Triada Monastery (%351 8563). Perched above a picturesque line of poplar trees in a spot that has been occupied by a Greek monastery since Byzantine times, this building dates from 1894. It functioned as a Greek Orthodox theological school until 1971, when it was closed on the government’s orders, and has an internationally renowned library. There are signs that it may re-open soon. You may be able to visit if you call ahead.

The largest island in the group, Bykada (Great Island) shows is impressive from the ferry, with gingerbread villas climbing up the slopes of the hill and the bulbous twin cupolas of the Splendid Otel providing an unmistakable landmark. It’s a truly lovely spot to spend an afternoon.

The ferry terminal is an attractive building in the Ottoman kiosk style; it dates from 1899. Inside there’s a pleasant tile-decorated caf with an outdoor terrace, as well as a Tourist Information Office. Eateries serve fresh fish to the left of the ferry terminal, next to an ATM.

The island’s main drawcard is the Greek Monastery of St George, in the ‘saddle’ between Bykada’s two highest hills. To get there, walk from the ferry straight ahead to the clock tower in skele Square (Dock Square). The shopping district is left along Recep Ko Sokak. Bear right onto 23 Nisan Caddesi, then head along ankaya Caddesi up the hill to the monastery; when you come to a fork in the road veer right. The walk (at least one hour) takes you past a long progression of impressive wooden villas set in gardens. About a quarter of the way up on the left is the Bykada Kltr Evi, a charming spot where you can enjoy a tea or coffee in a garden setting. The house itself dates from 1878 and was restored in 1998. After 40 minutes or so you will reach a reserve called ‘Luna Park’ by the locals. The monastery is a 25-minute walk up an extremely steep hill from here. Some visitors hire a donkey to take them up the hill and back for around YTL10. As you ascend, you’ll see countless pieces of cloth tied to the branches of trees along the path – each represents a prayer, most made by female supplicants visiting the monastery to pray for a child.

Bicycles are available for rent in several of the town’s shops, and shops on the market street can provide picnic supplies, though food is cheaper on the mainland. Just off the clock tower square and opposite the Splendid Otel there are fayton stands. Hire one for a long tour of the town, hills and shore (one hour around YTL45) or a shorter tour of the town (around YTL35). It costs around YTL16 to be taken to Luna Park. A shop just near the fayton stand hires out bicycles (per hour around YTL3-3).

Fourteen ferries run to the islands each day from 06:50 to midnight, departing from Kabata’ ‘Adalar skelesi’ dock. The most useful departure times for day-trippers are 09:30, 10:00 and 11:30. On summer weekends, board the vessel and grab a seat at least half an hour before departure time unless you want to stand the whole way. The trip costs around YTL3 the islands and the same for each leg between the islands and the return trip. The cheapest and easiest way to pay is to use your Akbil. To be safe, check the timetable at, as the schedule can change.The ferry steams away from Kabata and on its journey treats passengers to fine views of Topkap Palace, Aya Sofya and the Blue Mosque on the right, and skdar and Haydarpaa on the left. After 20 minutes the ferry makes a quick stop at Kadky on the Asian side before making its way to the first island, Knalada. This leg takes 30 minutes. After this, it’s another 15 minutes to Burgazada; another 15 minutes again to Heybeliada, the second-largest island; and another 10 minutes to Bykada, the largest island in the group.Ferries return to stanbul every 1.5 hours or so. The last ferry of the day leaves Bykada at 22:00 and Heybeliada at 22:15.

Read more:
Princes’ Islands – Lonely Planet

 Posted by at 12:43 pm  Tagged with:

Second Amendment – National Constitution Center

 Second Amendment  Comments Off on Second Amendment – National Constitution Center
Oct 122015

The Second Amendment

Modern debates about the Second Amendment have focused on whether it protects a private right of individuals to keep and bear arms, or a right that can be exercised only through militia organizations like the National Guard. This question, however, was not even raised until long after the Bill of Rights was adopted.

Many in the Founding generation believed that governments are prone to use soldiers to oppress the people. English history suggested that this risk could be controlled by permitting the government to raise armies (consisting of full-time paid troops) only when needed to fight foreign adversaries. For other purposes, such as responding to sudden invasions or other emergencies, the government could rely on a militia that consisted of ordinary civilians who supplied their own weapons and received some part-time, unpaid military training.

The onset of war does not always allow time to raise and train an army, and the Revolutionary War showed that militia forces could not be relied on for national defense. The Constitutional Convention therefore decided that the federal government should have almost unfettered authority to establish peacetime standing armies and to regulate the militia.

This massive shift of power from the states to the federal government generated one of the chief objections to the proposed Constitution. Anti-Federalists argued that the proposed Constitution would take from the states their principal means of defense against federal usurpation. The Federalists responded that fears of federal oppression were overblown, in part because the American people were armed and would be almost impossible to subdue through military force.

Implicit in the debate between Federalists and Anti-Federalists were two shared assumptions. First, that the proposed new Constitution gave the federal government almost total legal authority over the army and militia. Second, that the federal government should not have any authority at all to disarm the citizenry. They disagreed only about whether an armed populace could adequately deter federal oppression.

The Second Amendment conceded nothing to the Anti-Federalists desire to sharply curtail the military power of the federal government, which would have required substantial changes in the original Constitution. Yet the Amendment was easily accepted because of widespread agreement that the federal government should not have the power to infringe the right of the people to keep and bear arms, any more than it should have the power to abridge the freedom of speech or prohibit the free exercise of religion.

Much has changed since 1791. The traditional militia fell into desuetude, and state-based militia organizations were eventually incorporated into the federal military structure. The nations military establishment has become enormously more powerful than eighteenth century armies. We still hear political rhetoric about federal tyranny, but most Americans do not fear the nations armed forces and virtually no one thinks that an armed populace could defeat those forces in battle. Furthermore, eighteenth century civilians routinely kept at home the very same weapons they would need if called to serve in the militia, while modern soldiers are equipped with weapons that differ significantly from those generally thought appropriate for civilian uses. Civilians no longer expect to use their household weapons for militia duty, although they still keep and bear arms to defend against common criminals (as well as for hunting and other forms of recreation).

The law has also changed. While states in the Founding era regulated gunsblacks were often prohibited from possessing firearms and militia weapons were frequently registered on government rollsgun laws today are more extensive and controversial. Another important legal development was the adoption of the Fourteenth Amendment. The Second Amendment originally applied only to the federal government, leaving the states to regulate weapons as they saw fit. Although there is substantial evidence that the Privileges or Immunities Clause of the Fourteenth Amendment was meant to protect the right of individuals to keep and bear arms from infringement by the states, the Supreme Court rejected this interpretation in United States v. Cruikshank (1876).

Until recently, the judiciary treated the Second Amendment almost as a dead letter. In District of Columbia v. Heller (2008), however, the Supreme Court invalidated a federal law that forbade nearly all civilians from possessing handguns in the nations capital. A 54 majority ruled that the language and history of the Second Amendment showed that it protects a private right of individuals to have arms for their own defense, not a right of the states to maintain a militia.

The dissenters disagreed. They concluded that the Second Amendment protects a nominally individual right, though one that protects only the right of the people of each of the several States to maintain a well-regulated militia. They also argued that even if the Second Amendment did protect an individual right to have arms for self-defense, it should be interpreted to allow the government to ban handguns in high-crime urban areas.

Two years later, in McDonald v. City of Chicago (2010), the Court struck down a similar handgun ban at the state level, again by a 54 vote. Four Justices relied on judicial precedents under the Fourteenth Amendments Due Process Clause. Justice Thomas rejected those precedents in favor of reliance on the Privileges or Immunities Clause, but all five members of the majority concluded that the Fourteenth Amendment protects against state infringement the same individual right that is protected from federal infringement by the Second Amendment.

Notwithstanding the lengthy opinions in Heller and McDonald, they technically ruled only that government may not ban the possession of handguns by civilians in their homes. Heller tentatively suggested a list of presumptively lawful regulations, including bans on the possession of firearms by felons and the mentally ill, bans on carrying firearms in sensitive places such as schools and government buildings, laws restricting the commercial sale of arms, bans on the concealed carry of firearms, and bans on weapons not typically possessed by law-abiding citizens for lawful purposes. Many issues remain open, and the lower courts have disagreed with one another about some of them, including important questions involving restrictions on carrying weapons in public.

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process.

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much.

Not a Second Class Right: The Second Amendment Today by Nelson Lund

The right to keep and bear arms is a lot like the right to freedom of speech. In each case, the Constitution expressly protects a liberty that needs to be insulated from the ordinary political process. Neither right, however, is absolute. The First Amendment, for example, has never protected perjury, fraud, or countless other crimes that are committed through the use of speech. Similarly, no reasonable person could believe that violent criminals should have unrestricted access to guns, or that any individual should possess a nuclear weapon.

Inevitably, courts must draw lines, allowing government to carry out its duty to preserve an orderly society, without unduly infringing the legitimate interests of individuals in expressing their thoughts and protecting themselves from criminal violence. This is not a precise science or one that will ever be free from controversy.

One judicial approach, however, should be unequivocally rejected. During the nineteenth century, courts routinely refused to invalidate restrictions on free speech that struck the judges as reasonable. This meant that speech got virtually no judicial protection. Government suppression of speech can usually be thought to serve some reasonable purpose, such as reducing social discord or promoting healthy morals. Similarly, most gun control laws can be viewed as efforts to save lives and prevent crime, which are perfectly reasonable goals. If thats enough to justify infringements on individual liberty, neither constitutional guarantee means much of anything.

During the twentieth century, the Supreme Court finally started taking the First Amendment seriously. Today, individual freedom is generally protected unless the government can make a strong case that it has a real need to suppress speech or expressive conduct, and that its regulations are tailored to that need. The legal doctrines have become quite complex, and there is room for disagreement about many of the Courts specific decisions. Taken as a whole, however, this body of case law shows what the Court can do when it appreciates the value of an individual right enshrined in the Constitution.

The Second Amendment also raises issues about which reasonable people can disagree. But if the Supreme Court takes this provision of the Constitution as seriously as it now takes the First Amendment, which it should do, there will be some easy issues as well.

District of Columbia v. Heller (2008) is one example. The right of the people protected by the Second Amendment is an individual right, just like the right[s] of the people protected by the First and Fourth Amendments. The Constitution does not say that the Second Amendment protects a right of the states or a right of the militia, and nobody offered such an interpretation during the Founding era. Abundant historical evidence indicates that the Second Amendment was meant to leave citizens with the ability to defend themselves against unlawful violence. Such threats might come from usurpers of governmental power, but they might also come from criminals whom the government is unwilling or unable to control.

McDonald v. City of Chicago (2010) was also an easy case under the Courts precedents. Most other provisions of the Bill of Rights had already been applied to the states because they are deeply rooted in this Nations history and tradition. The right to keep and bear arms clearly meets this test.

The text of the Constitution expressly guarantees the right to bear arms, not just the right to keep them. The courts should invalidate regulations that prevent law-abiding citizens from carrying weapons in public, where the vast majority of violent crimes occur. First Amendment rights are not confined to the home, and neither are those protected by the Second Amendment.

Nor should the government be allowed to create burdensome bureaucratic obstacles designed to frustrate the exercise of Second Amendment rights. The courts are vigilant in preventing government from evading the First Amendment through regulations that indirectly abridge free speech rights by making them difficult to exercise. Courts should exercise the same vigilance in protecting Second Amendment rights.

Some other regulations that may appear innocuous should be struck down because they are little more than political stunts. Popular bans on so-called assault rifles, for example, define this class of guns in terms of cosmetic features, leaving functionally identical semi-automatic rifles to circulate freely. This is unconstitutional for the same reason that it would violate the First Amendment to ban words that have a French etymology, or to require that French fries be called freedom fries.

In most American states, including many with large urban population centers, responsible adults have easy access to ordinary firearms, and they are permitted to carry them in public. Experience has shown that these policies do not lead to increased levels of violence. Criminals pay no more attention to gun control regulations than they do to laws against murder, rape, and robbery. Armed citizens, however, prevent countless crimes and have saved many lives. Whats more, the most vulnerable peopleincluding women, the elderly, and those who live in high crime neighborhoodsare among the greatest beneficiaries of the Second Amendment. If the courts require the remaining jurisdictions to stop infringing on the constitutional right to keep and bear arms, their citizens will be more free and probably safer as well.

The Reasonable Right to Bear Arms by Adam Winkler

Gun control is as much a part of the Second Amendment as the right to keep and bear arms. The text of the amendment, which refers to a well regulated Militia, suggests as much. As the Supreme Court correctly noted in District of Columbia v. Heller (2008), the militia of the founding era was the body of ordinary citizens capable of taking up arms to defend the nation. While the Founders sought to protect the citizenry from being disarmed entirely, they did not wish to prevent government from adopting reasonable regulations of guns and gun owners.

Although Americans today often think that gun control is a modern invention, the Founding era had laws regulating the armed citizenry. There were laws designed to ensure an effective militia, such as laws requiring armed citizens to appear at mandatory musters where their guns would be inspected. Governments also compiled registries of civilian-owned guns appropriate for militia service, sometimes conducting door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, including slaves and loyalists. The Founders even had laws requiring people to have guns appropriate for militia service.

The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today. The right to keep and bear arms was not a libertarian license for anyone to have any kind of ordinary firearm, anywhere they wanted. Nor did the Second Amendment protect a right to revolt against a tyrannical government. The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation.

The Founding-era laws indicate why the First Amendment is not a good analogy to the Second. While there have always been laws restricting perjury and fraud by the spoken word, such speech was not thought to be part of the freedom of speech. The Second Amendment, by contrast, unambiguously recognizes that the armed citizenry must be regulatedand regulated well. This language most closely aligns with the Fourth Amendment, which protects a right to privacy but also recognizes the authority of the government to conduct reasonable searches and seizures.

The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Ever since the first cases challenging gun controls for violating the Second Amendment or similar provisions in state constitutions, courts have repeatedly held that reasonable gun lawsthose that dont completely deny access to guns by law-abiding peopleare constitutionally permissible. For 150 years, this was the settled law of the landuntil Heller.

Heller, however, rejected the principle of reasonableness only in name, not in practice. The decision insisted that many types of gun control laws are presumptively lawful, including bans on possession of firearms by felons and the mentally ill, bans on concealed carry, bans on dangerous and unusual weapons, restrictions on guns in sensitive places like schools and government buildings, and commercial sale restrictions. Nearly all gun control laws today fit within these exceptions. Importantly, these exceptions for modern-day gun laws unheard of in the Founding era also show that lawmakers are not limited to the types of gun control in place at the time of the Second Amendments ratification.

In the years since Heller, the federal courts have upheld the overwhelming majority of gun control laws challenged under the Second Amendment. Bans on assault weapons have been consistently upheld, as have restrictions on gun magazines that hold more than a minimum number of rounds of ammunition. Bans on guns in national parks, post offices, bars, and college campuses also survived. These decisions make clear that lawmakers have wide leeway to restrict guns to promote public safety so long as the basic right of law-abiding people to have a gun for self-defense is preserved.

Perhaps the biggest open question after Heller is whether the Second Amendment protects a right to carry guns in public. While every state allows public carry, some states restrict that right to people who can show a special reason to have a gun on the street. To the extent these laws give local law enforcement unfettered discretion over who can carry, they are problematic. At the same time, however, many constitutional rights are far more limited in public than in the home. Parades can be required to have a permit, the police have broader powers to search pedestrians and motorists than private homes, and sexual intimacy in public places can be completely prohibited.

The Supreme Court may yet decide that more stringent limits on gun control are required under the Second Amendment. Such a decision, however, would be contrary to the text, history, and tradition of the right to keep and bear arms.

More here:
Second Amendment – National Constitution Center

 Posted by at 3:40 am  Tagged with:

Hungary joins other NATO allies to host command center …

 NATO  Comments Off on Hungary joins other NATO allies to host command center …
Oct 042015

BUDAPEST Hungary, along with other states in central and eastern Europe, will host a command center to help coordinate deployment of NATO’s rapid reaction force in an emergency, the government said on Friday.

The U.S.-led military alliance has already activated similar centers in Lithuania, Bulgaria, Estonia, Latvia, Poland and Romania.

Hungary said the command center, called a NATO Force Integration Unit, would be staffed by 40 officers from Hungary and other NATO member states, but it would not be a base for forces.

“Its task in peaceful times is to organize and plan international exercises and, in an emergency, the coordination of the NATO Reaction Force,” the government spokesman’s office said in a reply to questions by Reuters.

The role of NATO’s spearhead force, due to be fully operational early next year, is likely to be discussed by alliance defense ministers at a meeting in Brussels on Oct.8.

Some eastern European NATO members, including Poland, want to keep the force’s focus on deterring a possible Russian attack in light of Moscow’s annexation of Crimea in March last year.

“We started from the fact that the world is becoming a more and more dangerous place and we may need fast and efficient help from our allies,” the spokesman said.

NATO said on its website that the centers would “help in rapid deployment of Allied forces to the eastern part of the Alliance if necessary.”

(Reporting by Krisztina Than; Editing by Richard Balmforth)

Read the original post:
Hungary joins other NATO allies to host command center …

 Posted by at 9:46 pm  Tagged with:

First Amendment of our countrys Bill of Rights

 Misc  Comments Off on First Amendment of our countrys Bill of Rights
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.

See the original post:
First Amendment of our countrys Bill of Rights

Federal court rules that only drug companies, not supplement …

 Misc  Comments Off on Federal court rules that only drug companies, not supplement …
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.


Permalink to this article:

Embed article link: (copy HTML code below): Federal court rules that only drug companies, not supplement companies, have First Amendment rights to truthful speech about health

Reprinting this article: Non-commercial use OK, cite with clickable link.

Follow Natural News on Facebook, Twitter, Google Plus, and Pinterest

Read this article:
Federal court rules that only drug companies, not supplement …

 Posted by at 10:44 am  Tagged with:

A Skype alternative worth its salt: Jitsi | usability …

 Jitsi  Comments Off on A Skype alternative worth its salt: Jitsi | usability …
Sep 052015

Ive been using Skype, Google Talk and Facebook chat for years to communicate with friends and family. Theyre all convenient, reliable and easy to use. But there is a big problem: They are all very easy to record and monitor by 3rd parties. We now know that:

So if you happen to live in a surveillance state (think countries of the Arab Spring, think UK with their repeated attempts to introduce surveillance of their citizens, think USA with their record-breaking demands for your personal data from all of the above service providers (Microsoft, Google and Facebook)) then you can expect that all your online communications with your loved ones (voice calls, video calls, text chats) are recorded and stored, or at least eavesdropped upon. Theyre all great free services that allow you to keep in touch with people, with one caveat: the government is listening in.

If you have no problem with that, perhaps because you subscribe to the flawed I have nothing to hide school of thought, read no further.

If you feel that being spied upon constantly, and having no reasonable expectation of privacy for your online life is not cool, read on.

The work of thousands of visionaries (starting with people like Richard Stallman in the 70s) has today given us the free tools to protect our online communications to a reasonable degree. These are not tools to stop a police investigation against you from succeeding these are tools that empower you to opt-out from the surveillance-by-default communications channels most of us use, and instead keep your private thoughts and words only between yourself and your loved ones.

The easiest one to get us started is Jitsi.

Jitsi gives you voice calls, video calls, instant text messages and group chats. It therefore covers 100% of the communication capabilities of Microsofts Skype, Google Talk, Facebook Chat, IRC channels and the like. Use Jitsi, and you dont need to use any of these again.

Why switch to Jitsi?

Because it protects your privacy as much as possible. If you and your loved ones use Jitsi, you can:

As an additional benefit, its great to have all of your instant messaging contacts in one window, and Jitsi gives you that. It also runs on Windows, MacOSX and GNU/Linux.

Start using Jitsi instead of Skype, Google Talk and Facebook Chat and stop corporations and governments collecting, storing and analyzing the thoughts you share with your loved ones.

PS: You can only have private communications if both ends of the chat/voice/video call support this. If both you and your loved ones use Jitsi, voice & video calls are private by default. For text chats, you will have to click the lock icon in your chat window (as shown below) until it displays a closed lock state.

PPS: No lock icon? That probably means that the person you are chatting with is not using Jitsi or a similar program that can protect your chats with OTR. You can only have a private conversation if both ends support OTR.

PPPS: Looking for something like Jitsi for your smartphone? For private text messaging (using the Off The Record protocol) look at ChatSecure for iPhones or GibberBot for Android phones. For private voice calls on the Android, look into csipsimple and Moxie Marlinspikes RedPhone. Remember, both ends of the conversation need the same technology to create a private channel.

Like Loading…


Go here to read the rest:
A Skype alternative worth its salt: Jitsi | usability …

 Posted by at 7:43 pm  Tagged with:

Second Amendment | United States Constitution |

 Second Amendment  Comments Off on Second Amendment | United States Constitution |
Sep 022015

Second Amendment,Second AmendmentNARAamendment to the Constitution of the United States, adopted in 1791 as part of the Bill of Rights, that provided a constitutional check on congressional power under Article I Section 8 to organize, arm, and discipline the federal militia. The Second Amendment reads, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Referred to in modern times as an individuals right to carry and use arms for self-defense, the Second Amendment was envisioned by the framers of the Constitution, according to College of William and Mary law professor and future U.S. District Court judge St. George Tucker in 1803 in his great work Blackstones Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, as the true palladium of liberty. In addition to checking federal power, the Second Amendment also provided state governments with what Luther Martin (1744/481826) described as the last coup de grace that would enable the states to thwart and oppose the general government. Last, it enshrined the ancient Florentine and Roman constitutional principle of civil and military virtue by making every citizen a soldier and every soldier a citizen. (See also gun control.)

Until 2008 the Supreme Court of the United States had never seriously considered the constitutional scope of the Second Amendment. In its first hearing on the subject, in Presser v. Illinois (1886), the Supreme Court held that the Second Amendment prevented the states from prohibit[ing] the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security. More than four decades later, in United States v. Schwimmer (1929), the Supreme Court cited the Second Amendment as enshrining that the duty of individuals to defend our government against all enemies whenever necessity arises is a fundamental principle of the Constitution and holding that the common defense was one of the purposes for which the people ordained and established the Constitution. Meanwhile, in United States v. Miller (1939), in a prosecution under the National Firearms Act (1934), the Supreme Court avoided addressing the constitutional scope of the Second Amendment by merely holding that the possession or use of a shotgun having a barrel of less than eighteen inches in length was not any part of the ordinary military equipment protected by the Second Amendment.

For more than seven decades after the United States v. Miller decision, what right to bear arms that the Second Amendment protected remained uncertain. This uncertainty was ended, however, in District of Columbia v. Heller (2008), in which the Supreme Court examined the Second Amendment in exacting detail. In a narrow 54 majority, delivered by Antonin Scalia, the Supreme Court held that self-defense was the central component of the amendment and that the District of Columbias prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense to be unconstitutional. The Supreme Court also affirmed previous rulings that the Second Amendment ensured the right of individuals to take part in the defending of their liberties by taking up arms in an organized militia. However, the court was clear to emphasize that an individuals right to an organized militia is not the sole institutional beneficiary of the Second Amendments guarantee.

Because the Heller ruling constrained only federal regulations against the right of armed self-defense in the home, it was unclear whether the court would hold that the Second Amendment guarantees established in Heller were equally applicable to the states. The Supreme Court answered this question in 2010, with its ruling on McDonald v. Chicago. In a plurality opinion, a 54 majority held that the Heller right to possess a handgun in the home for the purpose of self-defense is applicable to the states through the Fourteenth Amendments due process clause.

However, despite the use of person in the Fourteenth Amendments due process clause, the McDonald plurality opinion did not extend to noncitizens. Clarence Thomass fifth and decisive vote only extended the Second Amendment right recognized in Heller to citizens. Thomas wrote, Because this case does not involve a claim brought by a noncitizen, I express no view on the difference, if any, between my conclusion and the plurality with respect to the extent to which States may regulate firearm possession by noncitizens. Thomas further came to this conclusion because he thought the Second Amendment should be incorporated through the Fourteenth Amendments privileges or immunities clause, which only recognizes the rights of citizens.

The relatively narrow holdings in the McDonald and Heller decisions left many Second Amendment legal issues unsettled, including the constitutionality of many federal gun-control regulations, whether the right to carry or conceal a weapon in public was protected, and whether noncitizens are protected through the equal protection clause.

The origins of the Second Amendment can be traced to ancient Roman and Florentine times, but its English origins developed in the late 16th century when Queen Elizabeth I instituted a national militia where individuals of all classes were required by law to take part in defending the realm. Although Elizabeths attempt to establish a national militia failed miserably, the ideology of the militia would be used as a political tool up to the mid-18th century. The political debate over the establishment and control of the militia was a contributing factor in both the English Civil Wars (164251) and the Glorious Revolution (168889).

Despite recognition in the early 21st century by the Supreme Court that the Second Amendment protected armed individual self-defense in the home, many constitutional historians disagreed with the court that the Second Amendment protected anything but the right to participate in a militia force as the means of defending their liberties. For over two centuries there was a consensus that the Second Amendment protected only the right of individuals to keep and bear Arms in order to take part in defending their liberties as a militia force. However, by the late 20th century the popular consensus had shifted, many believing that the Second Amendment was framed to protect armed self-defense in the home.

In England, following the Glorious Revolution, the Second Amendments predecessor was codified in the British Bill of Rights in 1689, under its Article VII, which proclaimed that the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. Often misinterpreted as a right to defend ones person, home, or property, the allowance to have arms ensured that Parliament could exercise its sovereign right of self-preservation against a tyrannical crown by arming qualified Protestants as a militia.

The framers of the U.S. Constitution undoubtedly had in mind the English allowance to have arms when drafting the Second Amendment. The constitutional significance of a well regulated Militia is well documented in English and American history from the late 17th century through the American Revolution; it was included in the Articles of Confederation (1781), the countrys first constitution, and was even noted at the Constitutional Convention that drafted the new U.S. Constitution in Philadelphia in 1787. The right to keep and bear Arms was thus included as a means to accomplish the objective of a well regulated Militiato provide for the defense of the nation, to provide a well-trained and disciplined force to check federal tyranny, and to bring constitutional balance by distributing the power of the sword equally among the people, the states, and the federal government.

Read more:
Second Amendment | United States Constitution |

 Posted by at 1:41 pm  Tagged with:

The Fifth Amendment – National Constitution Center

 Fifth Amendment  Comments Off on The Fifth Amendment – National Constitution Center
Aug 312015

Grand Jury Protection: The Fifth Amendment requirement that serious federal criminal charges be started by a grand jury (a group of citizens who hear evidence from a prosecutor about potential crimes) is rooted in English common law. Its basic purpose is to provide a fair method for beginning criminal proceedings against those accused of committing crimes. Grand jury charges can be issued against anyone except members of the military, who are instead subject to courts-martial in the military justice system.

To avoid giving government unchecked powers, grand jurors are selected from the general population and their work, conducted in secret, is not hampered by rigid rules about the type of evidence that can be heard. In fact, grand jurors can act on their own knowledge and are free to start criminal proceedings on any information that they think relevant.

It is these broad powers that have led some critics to charge that grand juries are little more than puppets of prosecutors. Grand juries also serve an investigative role-because grand juries can compel witnesses to testify in the absence of their lawyers.

A significant number of states do not use grand juries, instead they begin criminal proceedings using informations or indictments. The right to a grand jury is one of only a few protections in the Bill of Rights that has not been applied to the states by the Fourteenth Amendment.

Protection against Double Jeopardy: This portion of the Fifth Amendment protects individuals from being twice put in jeopardy of life or limbthat is, in danger of being punished more than once for the same criminal act. The U.S. Supreme Court has interpreted the double jeopardy clause to protect against a second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same crime. Like other provisions in the Bill of Rights that affect criminal prosecutions, the double jeopardy clause is rooted in the idea that the government should not have unlimited power to prosecute and punish criminal suspects. Rather, the government gets only one chance to make its case.

Right against Self-Incrimination: This provision of the Fifth Amendment is probably the best-known of all constitutional rights, as it appears frequently on television and in movieswhether in dramatic courtroom scenes (I take the Fifth!) or before the police question someone in their custody (You have the right to remain silent. Anything you do say can be used against you in a court of law.). The right protects a person from being forced to reveal to the police, prosecutor, judge, or jury any information that might subject him or her to criminal prosecution. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case. If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.

The right to remain silent also means that a defendant has the right not to take the witness stand at all during his or her trial, and that the prosecutor cannot point to the defendants silence as evidence of guilt. There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence. Similarly, incriminating statements that an individual makes voluntarilysuch as when a suspect confesses to a friend or writes in a personal diaryare not protected.

Right to Due Process: The right to due process of law has been recognized since 1215, when the Magna Carta (the British charter) was adopted. Historically, the right protected people accused of crimes from being imprisoned without fair procedures (like indictments and trials, where they would have an opportunity to confront their accusers). The right of due process has grown in two directions: It affords individuals a right to a fair process (known as procedural due process) and a right to enjoy certain fundamental liberties without governmental interference (known as substantive due process). The Fifth Amendments due process clause applies to the federal governments conduct. In 1868 the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments.

Today, court decisions interpreting the Fourteenth Amendments due process right generally apply to the Fifth Amendment and vice versa.

Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large. When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses (for a highway or a park, for example). For the most part, when defining just compensation, courts try to reach some approximation of market value.

Read the original post:
The Fifth Amendment – National Constitution Center

 Posted by at 11:43 am  Tagged with:

Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

 Fifth Amendment  Comments Off on Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …
Aug 312015

The Fifth Amendment of the U.S. Constitution provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The clauses incorporated within the Fifth Amendment outline basic constitutional limits on police procedure. The Framers derived the Grand Juries Clause and the Due Process Clause from the Magna Carta, dating back to 1215. Scholars consider the Fifth Amendment as capable of breaking down into the following five distinct constitutional rights: grand juries for capital crimes, a prohibition on double jeopardy, a prohibition against required self-incrimination, a guarantee that all criminal defendants will have a fair trial, and a promise that the government will not seize private property without paying market value. While the Fifth Amendment originally only applied to federal courts, the U.S. Supreme Court has interpreted the Fifth Amendment’s provisions as now applying to the states through the Due Process Clause of the Fourteenth Amendment.

Grand juries are a holdover from hundreds of years ago, originating during Britain’s early history. Deeply-rooted in the Anglo-American tradition, the grand jury originally served to protect the accused from overly-zealous prosecutions by the English monarchy.

Congressional statutes outline the means by which a grand jury shall be impaneled. Ordinarily, the grand jurors are selected from the pool of prospective jurors who potentially could serve on a given day in any juror capacity. At common-law, a grand jury consists of between 12 and 23 members. Because the Grand jury was derived from the common-law, courts use the common-law as a means of interpreting the Grand Jury Clause. While state legislatures may set the statutory number of grand jurors anywhere within the common-law requirement of 12 to 23, statutes setting the number outside of this range violate the Fifth Amendment. Federal law has set the federal grand jury number as falling between 16 and 23.

A person being charged with a crime that warrants a grand jury has the right to challenge members of the grand juror for partiality or bias, but these challenges differ from peremptory challenges, which a defendant has when choosing a trial jury. When a defendant makes a peremptory challenge, the judge must remove the juror without making any proof, but in the case of a grand juror challenge, the challenger must establish the cause of the challenge by meeting the same burden of proof as the establishment of any other fact would require. Grand juries possess broad authority to investigate suspected crimes. They may not, however, conduct “fishing expeditions” or hire individuals not already employed by the government to locate testimony or documents. Ultimately, grand juries may make a presentment. During a presentment the grand jury informs the court that they have a reasonable suspicion that the suspect committed a crime.

The Double Jeopardy Clause aims to protect against the harassment of an individual through successive prosecutions of the same alleged act, to ensure the significance of an acquittal, and to prevent the state from putting the defendant through the emotional, psychological, physical, and financial troubles that would accompany multiple trials for the same alleged offense. Courts have interpreted the Double Jeopardy Clause as accomplishing these goals by providing the following three distinct rights: a guarantee that a defendant will not face a second prosecution after an acquittal, a guarantee that a defendant will not face a second prosecution after a conviction, and a guarantee that a defendant will not receive multiple punishments for the same offense. Courts, however, have not interpreted the Double Jeopardy Clause as either prohibiting the state from seeking review of a sentence or restricting a sentence’s length on rehearing after a defendant’s successful appeal.

Jeopardy refers to the danger of conviction. Thus, jeopardy does not attach unless a risk of the determination of guilt exists. If some event or circumstance prompts the trial court to declare a mistrial, jeopardy has not attached if the mistrial only results in minimal delay and the government does not receive added opportunity to strengthen its case.

The Fifth Amendment protects criminal defendants from having to testify if they may incriminate themselves through the testimony. A witness may “plead the Fifth” and not answer if the witness believes answering the question may be self-incriminatory.

In the landmark Miranda v. Arizona ruling, the United States Supreme Court extended the Fifth Amendment protections to encompass any situation outside of the courtroom that involves the curtailment of personal freedom. 384 U.S. 436 (1966). Therefore, any time that law enforcement takes a suspect into custody, law enforcement must make the suspect aware of all rights. Known as Miranda rights, these rights include the right to remain silent, the right to have an attorney present during questioning, and the right to have a government-appointed attorney if the suspect cannot afford one.

If law enforcement fails to honor these safeguards, courts will often suppress any statements by the suspect as violative of the Fifth Amendment’s protection against self-incrimination, provided that the suspect has not actually waived the rights. An actual waiver occurs when a suspect has made the waiver knowingly, intelligently, and voluntarily. To determine if a knowing, intelligent and voluntary waiver has occurred, a court will examine the totality of the circumstances, which considers all pertinent circumstances and events. If a suspect makes a spontaneous statement while in custody prior to being made aware of the Miranda rights, law enforcement can use the statement against the suspect, provided that police interrogation did not prompt the statement.

After Congress passed the Crime Control and Safe Streets Act, some felt that the statute by implication overruled the requirements of Miranda. Some scholars also felt that Congress constitutionally exercised its power in passing this law because they felt that Miranda represented a matter of judicial policy rather than an actual manifestation of Fifth Amendment protections. In Dickerson v. United States the U.S. Supreme Court rejected this arguments and held that the Warren Court had directly derived Miranda from the Fifth Amendment.

The guarantee of due process for all citizens requires the government to respect all rights, guarantees, and protections afforded by the U.S. Constitution and all applicable statutes before the government can deprive a person of life, liberty, or property. Due process essentially guarantees that a party will receive a fundamentally fair, orderly, and just judicial proceeding. While the Fifth Amendment only applies to the federal government, the identical text in the Fourteenth Amendment explicitly applies this due process requirement to the states as well.

Courts have come to recognize that two aspects of due process exist: procedural due process and substantive due process. Procedural due process aims to ensure fundamental fairness by guaranteeing a party the right to be heard, ensuring that the parties receive proper notification throughout the litigation, and ensures that the adjudicating court has the appropriate jurisdiction to render a judgment. Meanwhile, substantive due process has developed during the 20th century as protecting those right so fundamental as to be “implicit in the concept of ordered liberty.”

While the federal government has a constitutional right to “take” private property for public use, the Fifth Amendment’s Just Compensation Clause requires the government to pay just compensation, interpreted as market value, to the owner of the property. The U.S. Supreme Court has defined fair market value as the most probable price that a willing but unpressured buyer, fully knowledgeable of both the property’s good and bad attributes, would pay. The government does not have to pay a property owner’s attorney’s fees, however, unless a statute so provides.

In Kelo v. City of New London, the U.S. Supreme Court rendered a controversial opinion in which they held that a city could constitutionally seize private property for private commercial development. 545 U.S. 469 (2005).

See constitutional amendment.

See constitutional clauses.

View post:
Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

 Posted by at 11:43 am  Tagged with:

NSA – New Jersey 101.5

 NSA  Comments Off on NSA – New Jersey 101.5
Aug 292015

President Barack Obama speaks to the media on Friday, Aug 7, 2015, in the Oval Office of the White House in Washington. (AP Photo/Carolyn Kaster)

A federal appeals court on Friday ruled in favor of the Obama administration in a dispute over the National Security Agency’s bulk collection of telephone data on hundreds of millions of Americans.

Read More|Comment

Eliminating the National Security Agency’s bulk collection of Americans’ telephone records will make the U.S. less safe, New Jersey Gov. Chris Christie said Wednesday.

Read More|Comment

The White House wants the National Security Agency to get out of the business of sweeping up and storing vast amounts of data on Americans’ phone calls.

Read More|Comment

A sharply divided government task force that reviewed the National Security Agency’s surveillance program for four months has urged President Barack Obama to shut down the agency’s bulk collection of phone data and purge its massive inventory of millions of Americans’ calling records.

Read More|Comment

Seeking to calm a furor over U.S. surveillance, President Barack Obama on Friday called for ending the government’s control of phone data from hundreds of millions of Americans and immediately ordered intelligence agencies to get a secretive court’s permission before accessing such records.

Read More|Comment

President Barack Obama is expected to endorse changes to the way the government collects millions of Americans’ phone records for possible future surveillance, but he’ll leave many of the specific adjustments for Congress to sort out, according to three U.S. offi

National Security Agency leaker Edward Snowden says his “mission’s already accomplished” after leaking NSA secrets that have caused a reassessment of U.S. surveillance policies.

Read More|Comment

President Barack Obama is meeting with members of an intelligence task force to discuss their recommendations on how to modify the National Security Agency’s surveillance programs.

Read More|Comment

President Barack Obama is meeting today with executives from leading technology companies, including Google, Twitter and Apple.

Read More|Comment

A federal judge ruled Monday that the National Security Agency’s bulk collection of phone records violates the Constitution’s ban on unreasonable searches, but put his decision on hold pending a near-certain government appeal.

Read More|Comment

Read this article:
NSA – New Jersey 101.5

 Posted by at 5:43 am  Tagged with:

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