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First Amendment – constitution |

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Oct 282015

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

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

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

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

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

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

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


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First Amendment – constitution |

First Amendment – National Constitution Center

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Oct 282015

Clauses of the First Amendment

The Establishment Clause

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

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

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

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

The Lemon Test

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

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

Aid to religious institutions

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

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

Government-sponsored prayer

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

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

Accommodation of religion

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

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

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

Government-sponsored religious symbols

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Establishment Clause Doctrine

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

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

The Government May Not Delegate Governing Authority to Religious Entities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Free Exercise Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religious Liberty Is Equal Liberty by Frederick Gedicks

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

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

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

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

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

Read the full discussion here.

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

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

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

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

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

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

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

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

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

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

Read the full discussion here.

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

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

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

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

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

Freedom of Speech and the Press

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

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

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

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

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

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First Amendment – National Constitution Center

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First Amendment Center | Newseum Institute

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Oct 282015

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

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

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

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

Find First Amendment research articles by topic or keyword.


Download or order publications on First Amendment issues.


Learn more about the five freedoms of the First Amendment.


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


Learn more about the First Amendment Center and what we do.


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


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


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First Amendment Center | Newseum Institute

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Oct 282015


Adoption and the Common Law Background

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

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

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

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


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

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

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

[Footnote 4] Id. at 1153.

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

[Footnote 6] Id. at 738.

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

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

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

[Footnote 10] Id. at 159 et seq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Annotation 6 – First Amendment – FindLaw

Second Amendment – Conservapedia

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Oct 192015

See also gun control.

The Second Amendment to the United States Constitution states:[1]

For several decades, the lower federal courts had interpreted the Second Amendment as protecting merely a collective right of state militias.[2] However, the U.S Supreme Court has always called it an individual right. The 2008 Supreme Court decision of District of Columbia v. Heller ruled 5-4 that the Second Amendment protects an individual right.

In 1786, the United States existed as a loose national government under the Articles of Confederation. This confederation was perceived to have several weaknesses, among which was the inability to mount a Federal military response to an armed uprising in western Massachusetts known as Shays’ Rebellion.

In 1787, to address these weaknesses, the Constitutional Convention was held with the idea of amending the Articles. When the convention ended with a proposed Constitution, those who debated the ratification of the Constitution divided into two camps; the Federalists (who supported ratification of the Constitution) and the Anti-Federalists (who opposed it).

Among their objections to the Constitution, anti-Federalists feared a standing army that could eventually endanger democracy and civil liberties. Although the anti-Federalists were unsuccessful at blocking ratification of the Constitution, through the Massachusetts Compromise they insured that a Bill of Rights would be made, which would provide constitutional guarantees against taking away certain rights.

One of those rights was the right to bear arms. This was intended to prevent the Federal Government from taking away the ability of the states to raise an army and defend itself and arguably to prevent them from taking away from individuals the ability to bear arms.

The meaning of this amendment is controversial with respect to gun control.

The National Rifle Association, which supports gun rights, has a stone plaque in front of its headquarters bearing the words “The right of the people to keep and bear arms shall not be infringed.” The slogan means that individual citizens have the right to own and use guns.

American law has always said that the militia includes ordinary private citizens, and gun rights advocates say that the amendment means individuals have the right to own and use guns. Gun control advocates began in the late 20th century to say it means only that there is only some sort of collective or state-controlled right.

Supreme Court opinions have all been consistent with the individual rights interpretation of the Second Amendment, but the lower court opinions are mixed.

As of 2007, people argue about the meaning of the Second Amendment, but there is no definitive answer. The latest ruling is Parker v District of Columbia, in which the DC Circuit court of appeals ruled on March 9, 2007 that the DC gun ban violated individual rights under the Second Amendment.

The One Comma vs. The Three Comma Debate

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.””’

Quoted from:

Down to the Last Second (Amendment)

Participants in the various debates on firearms, crime, and constitutional law may have noticed that the Second Amendment is often quoted differently by those involved. The two main variations differ in punctuation- specifically, in the number of commas used to separate those twenty-seven words. But which is the correct one? The answer to this question must be found in official records from the early days of the republic. Therefore, a look into the progression of this declaratory and restrictive clause from its inception to its final form is in order.

Before beginning, one must note that common nouns, like “state” and “people,” were often capitalized in official and unofficial documents of the era. Also, an obsolete formation of the letter s used to indicate the long s sound was in common usage. The long ‘s’ is subject to confusion with the lower case ‘f’ ,therefore, Congress” is sometimes spelled as “Congrefs,” as is the case in the parchment copy of the Bill of Rights displayed by the National Archives. The quotations listed here are accurate. With the exception of the omission of quotations marks, versions of what is now known as the Second Amendment in boldface appear with the exact spelling, capitalization, and punctuation as the cited originals.

During ratification debates on the Constitution in the state conventions, several states proposed amendments to that charter. Anti-Federalist opposition to ratification was particularly strong in the key states of New York and Virginia, and one of their main grievances was that the Constitution lacked a declaration of rights. During the ratification process, Federalist James Madison became a champion of such a declaration, and so it fell to him, as a member of the 1st Congress, to write one. On June 8, 1789, Madison introduced his declaration of rights on the floor of the House. One of its articles read:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.1

On July 21, John Vining of Delaware was appointed to chair a select committee of eleven to review, and make a report on, the subject of amendments to the Constitution. Each committeeman represented one of the eleven states (Rhode Island and North Carolina had not ratified the Constitution at that time), with James Madison representing Virginia. Unfortunately, no record of the committee’s proceedings is known to exist. Seven days later, Vining duly issued the report, one of the amendments reading:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms. 2

In debates on the House floor, some congressmen, notably Elbridge Gerry of Massachusetts and Thomas Scott of Pennsylvania, objected to the conscientious objector clause in the fifth article. They expressed concerns that a future Congress might declare the people religiously scrupulous in a bid to disarm them, and that such persons could not be called up for military duty. However, motions to strike the clause were not carried. On August 21, the House enumerated the Amendments as modified, with the fifth article listed as follows:

5. A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. 3

Finally, on August 24, the House of Representatives passed its proposals for amendments to the Constitution and sent them to the Senate for their consideration. The next day, the Senate entered the document into their official journal. The Senate Journal shows Article the Fifth as:

Art. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person. 4

On September 4, the Senate debated the amendments proposed by the House, and the conscientious objector clause was quickly stricken. Sadly, these debates were held in secret, so records of them do not exist. The Senators agreed to accept Article the Fifth in this form:

…a well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall net be infringed. 5

In further debates on September 9, the Senate agreed to strike the words, “the best,” and replace them with, “necessary to the.” Since the third and fourth articles had been combined, the Senators also agreed to rename the amendment as Article the Fourth. The Senate Journal that day carried the article without the word, “best,” but also without the replacements, “necessary to.” Note that the extraneous commas have been omitted:

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed. 6

With two-thirds of the Senate concurring on the proposed amendments, they were sent back to the House for the Representatives’ perusal. On September 21, the House notified the Senate that it agreed to some of their amendments, but not all of them. However, they agreed to Article the Fourth in its entirety:

Resolved, That this House doth agree to the second, fourth, eighth, twelfth, thirteenth, sixteenth, eighteenth, nineteenth, twenty-fifth, and twenty-sixth amendments… 7

By September 25, the Congress had resolved all differences pertaining to the proposed amendments to the Constitution. On that day, a Clerk of the House, William Lambert, put what is now known as the Bill of Rights to parchment. Three days later, it was signed by the Speaker of the House, Frederick Augustus Muhlenberg, and the President of the Senate, Vice President John Adams. This parchment copy is held by the National Archives and Records Administration, and shows the following version of the fourth article:

Article the Fourth. 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. 8

The above version is used almost exclusively today, but aside from the parchment copy, the author was unable to find any other official documents from that era which carry the amendment with the extra commas. In fact, in the appendix of the Senate Journal, Article the Fourth is entered as reading:

Art. IV. 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.9

Also, the Annals of Congress, formally called The Debates and Proceedings in the Congress of the United States, show the proposed amendment as follows:

Article the Fourth. 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.10

Further, once two-thirds of both chambers of the Congress agreed to the proposed amendments, the House passed a resolve to request that the President send copies of them to the governors of the eleven states in the Union, and to those of Rhode Island and North Carolina. The Senate concurred on September 26, as recorded in their journal:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be requested to transmit to the executives of the United States, which have ratified the constitution copies of the amendments proposed by Congress, to be added thereto; and like copies to the executives of the states of Rhode Island and North Carolina.11

Fortunately, an original copy of the amendments proposed by the Congress, and sent to the State of Rhode Island and the Providence Plantations, does survive. Certified as a true copy by Assembly Secretary Henry Ward, it reads in part:

Article the Fourth, –A well regulated Militia being neceffary to the Security of a free State, the Right of the People to keep and bear Arms fhall not be infringed. 12

And so, the proposed amendments to the Constitution were sent to the states for ratification. When notifying the President that their legislatures or conventions had ratified some or all of the proposed amendments, some states attached certified copies of them. New York, Maryland, South Carolina, and Rhode Island notified the general government that they had ratified the fourth amendment in this form:

Article the Fourth. 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. 13

Articles the First and Second were not ratified by the required three-fourths of the states, but by December 15, 1791, the last ten articles were. These, of course, are now known as the Bill of Rights. Renumbering the amendments was required since the first two had not been ratified. The 1796 revision of The Federalist on the New Constitution reflects the change as such:


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.14

This version is carried throughout the 19th Century, in such legal treatises as Joseph Story’s Commentaries on the Constitution of the United States (1833) and Thomas Cooley’s Principles of Constitutional Law (1898). It is also transcribed in this manner in the 1845 Statutes at Large, although the term “state” is capitalized in that text. The latter are the official source for acts of Congress.15,16, 17

This version still appears today, as is the case with the annotated version of the Constitution they sponsored on the Government Printing Office web site (1992, supplemented in 1996 and 1998). The Second Amendment is shown as reading:

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. 18

(The Senate-sponsored GPO site does carry a “literal print” of the amendments to the Constitution showing the Second Amendment with the additional commas. The punctuation and capitalization of the amendments transcribed there are the same as those found on the parchment copy displayed in the Rotunda of the National Archives.)19

Thus, the correct rendition of the Second Amendment carries but a single comma, after the word “state.” It was in this form that those twenty-seven words were written, agreed upon, passed, and ratified.

Why the Commas are Important

It is important to use the proper Second Amendment because it is clearly and flawlessly written in its original form. Also, the function of the words, “a well regulated militia being necessary to the security of a free state,” are readily discerned when the proper punctuation is used. On the other hand, the gratuitous addition of commas serve only to render the sentence grammatically incorrect and unnecessarily ambiguous. These points will be demonstrated later in the Second Amendment Series.

Footnotes to Comment section:

1. Amendments Offered in Congress by James Madison, June 8, 1789. The Constitution Society., 16 January 2000.

2. Amendments Reported by the Select Committee. July 28, 1789. The Constitution Society., 16 January 2000.

3. U.S. House Journal. 1st Cong., 1st sess., 21 August 1789.

4. U.S. Senate Journal. 1st Cong., 1st sess., 25 August 1789.

5. U.S. Senate Journal, 1st Cong., 1st sess., 4 September 1789.

6. U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789.

7. U.S. House Journal. 1st Cong., 1st sess., 21 September 1789.

8. Bill of Rights. National Archives and Records Administration., 22 January 2000.

9. U.S. Senate Journal. 1st Cong., 1st sess., Appendix.

10. Annals of Congress, 1st Cong., 1st sess., Appendix

11. U.S. Senate Journal. 1st Cong. 1st sess., 26 September 1789.

12. A True Bill. The Constitution for the United States, Its Sources and Its Applications., 27 January 2000.

13. U.S. House Journal, 1st Cong., 3rd sess., Appendix Note: Maryland and South Carolina capitalized the “m” in “Militia.”

14. The Federalist on the New Constitution, 1796. The Constitution for the United States, Its Sources and Its Applications., 17 February 2000.

15. Commentaries on the Constitution of the United States. The Constitution Society., 18 February 2000.

16. Quotes from Constitutional Commentators. Gun Cite., 2 February 2000.

17. Statutes at Large 1845, 21.

18. Second Amendment–Bearing Arms. The Constitution of the United States of America., 18 February 2000.

19. Text of the Amendments (Literal Print). The Constitution of the United States of America., 18 February 2000.

Liberals have made various efforts to subvert the Second Amendment by enacting unconstitutional gun laws which restrict the ability of individuals to protect themselves against the excesses of government. Examples include:

See also list of celebrities against Second Amendment

Bill of Rights: 1 – Freedom of speech, press, etc. 2 – Right to bear arms 3 – Quartering of soldiers 4 – Warrants 5 – Due process 6 – Right to a speedy trial 7 – Right by trial of a jury 8 – No cruel or unusual punishments 9 – Unenumerated rights 10 – Power to the people and states

11 – Immunity of states to foreign suits 12 – Revision of presidential election procedures 13 – Abolition of slavery 14 – Citizenship 15 – Racial suffrage 16 – Federal income tax 17 – Direct election to the United States Senate 18 – Prohibition of alcohol 19 – Women’s suffrage 20 – Terms of the presidency 21 – Repeal of Eighteenth Amendment 22 – Limits the president to two terms 23 – Electoral College 24 – Prohibition of poll taxes 25 – Presidential disabilities 26 – Voting age lowered to 18 27 – Variance of congressional compensation

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Second Amendment – Conservapedia

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Annenberg Classroom – Fifth Amendment

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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.

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Annenberg Classroom – Fifth Amendment

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00.03.07: Human Cloning, Genetic Engineering and Privacy

 Human Genetic Engineering  Comments Off on 00.03.07: Human Cloning, Genetic Engineering and Privacy
Oct 162015

Yale-New Haven Teachers Institute Home

by Carolyn Williams

Much of the technology is now available and with it comes a host of moral and ethical concerns. Is man playing God? Will clones become a subculture? Are we risking genetic disasters? Will this technology benefit all of society or just a select few? Cloned humans and genetically engineered bodies are the stuff that yesterdays science fiction was made of. Today, they are current event topics and promise to become our medical future. We may not be morally prepared for these events, but the technology is here. Do we ignore it, try to regulate it, hope and pray that it goes away or do we embrace this new technology?

I am inclined to agree with Jeremy Rifkin, author of The Biotech Century who writes, Our way of life is likely to be transformed more fundamentally in the next few decades than in the previous thousand years. (1) We are looking ahead to the possibility of cloning or replicating a baby, rather than reproducing one in the old-fashioned ways, growing brains in a jar and correcting genetic disorders in human fetuses. While these ideas may sound sensational and perhaps even frightening to some, they are fast becoming a part of our medical environment.

Cloning and genetic engineering dominate tomorrows medical environment. That is the environment into which todays students will enter. They will inherit the responsibilities as scientists, geneticists, doctors, lawyers, politicians, theologians and educators who will decide if these technologies are ethically and morally acceptable This study will serve as a useful introduction for getting students to think about tomorrows issues.

For some, the concerns have become fears so great that a number of people have called for an outright ban into the practice of cloning human beings. Likewise, the idea of genetically manipulating human DNA cells raises questions about designing ideal human beings and also prompts a call for banning such research.

Those who support the idea of a ban see no benefits in practicing cloning.. Some concerns go toward ideas of immorality for creating in laboratories that which God intended in nature. Others feel that there is much to be gained by continuing the research and testing its possibilities. For that group, cloning offers benefits to infertile couples or those seeking to solve medical problems.

There are those who feel that genetic research technology would be used for immoral purposes. It raises questions of who will be the beneficiaries? How do we guard against creating a preferred race, a selected intelligence or behavior? How do these ideas of creating and engineering life fit into the traditional scheme of procreating? Cloning and genetic engineering eliminate human individuality and deny diversity, according to proponents of the ban.

On the other side of the issue, there is much to be gained by forging ahead with research into this technology and its application. The benefits could well outweigh the fears that many have conjured up about genetic disasters. The problem is that actual results cannot be obtained without testing it on human beings. While early discovery promises that human genome technology has the potential to help solve numerous medical problems that relate to aging, replacement of human body parts, infertility and what we now view as incurable diseases, we cannot know what will happen without applying the technology.

Proponents of the ban feel that the rich and the powerful will dictate who is cloned or how those clones will function in society? Do we dwell on the possibility that some races or classes of people will be eliminated because they were not chosen to be cloned? Do we hold those same fears about genetic engineering? That somehow medical science will be responsible for providing society with a new social weapon over the underprivileged? Are there any good reasons to take the risks?

Although cloning and genetic engineering invite numerous questions about human behavior and societys views of the value of life, would a government ban stifle the potential progress that this technology might bring to our lives? Would an outright ban be a violation of ones constitutional right to find out if our fears are justified?

To create a clone, doctors begin with a single egg cell from any woman. The nucleus of the cell (the part containing the genes) is taken out and replaced with the nucleus of a cell from the person being cloned. The cell can then be implanted into any woman and allowed to grow, develop and be born like any baby. But the woman who carries it is not its mother. It has no mother or father as we understand these terms. It is a clone- a genetic duplicate of its donor. (2)

Cloning is not new. It has existed for years with plants and more recently, with some invertebrates. Now we move to the realm of human cloning. That is cause for more serious consideration. A human being is more than just his or her genes and a clone is more than just a copy of his or her donor. A clone and its donor are identical twins, each with its own individuality and its own soul. These twins will be years apart in age and subject to the environment in which each lives

While the idea of cloning a human being does raise various concerns, mostly fears, the facts as we know them today are that a clone is a duplicate of another human. being. It is no less human or any less individual than the human from which it is copied. However, that knowledge remains to be tested and at this time the country is not prepared to find out if cloning works in practice as it does in theory.

first successful freezing of bull semen – 1950

frogs cloned from asexual tadpole cells- 1952

frogs cloned using cells of older tadpoles- 1962

Baby Louise was conceived in a laboratory dish through in vitro fertilization -1978

Baby M was born to a surrogate mother through artificial issemination-1983

Dolly, the sheep was reproduced in the exact genetic image of its mother- 1996/ 1997

Cloning of a Rhesus monkey whose reproductive development is close to a humans-1997.

Cloning of two more sheep, Molly and Polly with human blood clotting proteins in their milk which will be extracted to treat human hemophilia -1997

Cloning has been successful in these areas. What makes the difference in trying it with human beings? There is a fear that embryos will be manipulated to produce a child with the desired eye or hair color or with enhanced physical prowess or intelligence. Another fear is that a human will be cloned to provide organs for transplants for its genetic twin. (4) We cannot know if these things will happen.

The questions are taken from Lee Silvers Remaking Eden . The information which follows each question briefly summarizes Silvers research and is offered to aid you in your discussion of cloning as a reproductive choice. Each summarized response is followed by a citation note which indicates a range of pages where further clarification of the information can be found in the text.

-Could a woman give birth to her identical twin sister?

Consider the futuristic account of Jennifer and Rachel which begins in the year Jennifer is a thirty-five year old single woman who wants to have a child. Jennifer is well aware that cloning is illegal under federal law, except in the case of infertile women. Unlike twentieth century women who had to rely on sperm donated by a male, Jennifer decided to use her own cells to create new life.

A dozen or so eggs are recovered from Jennifers ovaries and each is fused with a donor cell taken from the inside of her mouth. The incubated eggs yield healthy embryos that are then implanted into Jennifers uterus. Nine months later, a healthy baby girl, Rachel is born to Jennifer.

Clearly Jennifer is Rachels birth mother because Rachel was born from Jennifers body. Rachel has no father because there is no male involvement. Jennifer is not Rachels genetic mother. Genetically, Jennifer and Rachel are twin sisters. This means that Rachels genetic parents are the same as Rachels genetic parents. Rachels genetic parents are in reality the two people that are traditionally referred to as her grandparents. Fanciful? (5)

-Could a child have two genetic mothers?

Technically it is possible to produce a fully healthy child through the fusion of two embryos from two different women. The eggs are harvested from both women and each fertilized using donated sperm from one single donor. The fertilized eggs are then incubated for the necessary period. After which the selected embryos from each of the two women are pushed together. They immediately stick to each other. From what was two embryos, there is now only one. While there is more clinical work to be done the resulting embryo shares two genetic mothers. Amazing! (6)

-Could a man become pregnant?

Is Male pregnancy possible? Probably yes . Is male pregnancy feasible? No, not at this time. Its not just a question of whether the baby lives, but whether the pregnant man himself survives the birth. The three ingredients that are essential for pregnancy are a fertilized egg, a hormonal environment to allow implantation and a living womb within which the embryo can grow and form a placenta. All of these occur naturally in a woman, but would have to be duplicated for a mans body. Presently, that duplication is a far reach into the future technology of cloning.

Science offers as proof, the birth of Baby Louise in 1978 which has shown that a womans eggs can be fertilized in vitro. Those eggs can then be inserted into a mans body through a tiny glass needle. That satisfies the first ingredient. The second ingredient is satisfied without new research. Doctors have already successfully stimulated the pregnancy environment in post menopausal women. With hormonal injections to stimulate the pregnancy environment, the implantation should likely take hold in a man in the same way that it does in a woman. That leaves the question of the living womb- the third and final ingredient. Again, science offers as proof, some abnormal pregnancies in which a womans abdomen acting as the womb have successfully resulted in live and healthy Cesarean births. Although many are dangerous to the mother and the fetus, some have occurred with positive results. While this kind of birth would represent a greater danger for men if spontaneous hemorrhaging occurred, the question remains. If a womans abdomen can act as a womb, why cant a mans?

The definitive answer(s) to the initial question are, Yes, male pregnancy is possible, but still, only through the help of a surrogate mother.. No, it is not likely to be tried by men or by clinicians who are asked to perform such a procedure for men. However, in our future, there will be males who will seek such a procedure and they will be accommodated. Think about that! (7)

The Journal of the American Medical Association reports that various public officials are proposing legislation to outlaw human cloning or at the very least impose restrictive limits on the research that will lead to cloning. To date, researchers fear that the US Congress could pass laws banning research on human cloning. A directive issued in 1997, by President Clinton to ban the use of federal funds for human cloning research suggests that an outright ban to continue the research and eventually the practice will be the next step taken by Congress. The directive not only bans the use of federal funds to public research companies, but also urges those who receive private funding to accept a voluntary five- year moratorium on such research, at least while the National Bioethics Advisory Commission (NBAC) reviews the issues and prepares a report. (8)

The directive was published in April of 1997, the Commission promised a report by the end of May in that same year. The NBAC examined ethical, legal and religious implications of cloning before urging a moratorium on human cloning. By Spring of 1999, Skeptic Magazine reported The Commission concludes that at this time it is morally unacceptable for anyone in the public or private sector, whether in a research or clinical setting; to attempt to create a child using somatic nuclear transfer cloning. (9) Somatic cell nuclear transfer was the technology used to clone Dolly, the sheep. Scientists feel that the same technology could be used to clone humans.

Ethical concerns against cloning as outlined by the Commission:

Catholic teaching refers to human cloning as something out of the norm. The cloning of human beings would be a violation of the natural moral law. The Catholic Medical Association CMA is opposed to any attempts at human cloning and finds it -contrary to the method of procreation designed by God. (11)

We can not know what harm or benefits cloning will bring to our human existence, as we know it today. We do know however, that much of what we fear in this technology will continue to play a role in our changing evolution.

To conclude this segment, I quote from Lee Silver, For human beings, though, its not just a question of whether cloning could work, its a question of whether it could work safely. A basic principle of medical ethics is that doctors should not perform any procedure on human subjects if the risk of harm is greater than the benefit that might be achieved. (12) Physicians would be obligated to refrain from practicing cloning technology unless they are sure that it causes no greater dangers than that which is associated with natural conception. As it stands now, can they be sure if they are banned from practicing?

Read and discuss the opening section on cloning Take an informal survey to find out if students understand what cloning is and how it happens.. Now find what individuals feel about cloning. Are they for or against it, based on their present knowledge? Why ?

Engage students in some dialog about cloning as a personal choice. Allow them to speak freely as to whether anyone would choose cloning for any reason. Guided questions should be general at this point. Follow the discussion with some focus on first impression ideas of what might be considered beneficial or harmful about cloning.

Read aloud with the class Been There; Done That and invite the students to ask questions about the reading. If there are no questions, pose some. For example, Is Baby Louise any less human that you are? Would a child born through a surrogate be loved differently than an adopted child? Would a cloned child necessarily be treated differently from either of these?

Choose one of the questions from Things that make your Brain Itch Engage students in critical thinking exercises to ease them into the idea of evaluating their personal positions through writing about any one of the topics that is suggested by the questions. Challenge or charm them to use their critical and creative thinking strengths to write and present a persuasive essay, or to create an original poem, short story, one- act play, song or any other idea that might demonstrate their understanding of the concepts and allow for some learning challenge at the same time.

One of the most significant changes within the twentieth century and early decades of the twenty-first century is the development of our ability to manipulate life through genetic engineering. Science promises to achieve in overnight laboratories the process of natural selection which would otherwise take millions of years in nature. Research predicts that one day geneticists may be able to remove traits from human beings that are considered undesirable and replace them with more acceptable ones. However, that is in our future. Currently, the battle is to be able to freely and legally complete the research that will eventually lead to this kind of genetic engineering of humans.

At this point, members of this society, like those in Canada and Europe raise questions in protest of the ethics and the morality of such practices. Should the US follow other countries and allow this protest to lead to an outright ban or stiff regulations against genetic engineering ? An outright ban not only limits potential medical breakthroughs, but limits personal freedoms as well.

Humans have some 100,000 genes which serve as instructions to the body. What will it mean to know the complete human genome, asks Eric Lander of MIT s Whithead Institute. According to Lander, some of the genes identified are linked to diseases like cancers of the breast and colon, Alzheimers, Glaucoma and Parkinsons. Figuring out how the genes work promises to lead to prevention and or advanced treatment.(14)

Genes are located in the nucleus of every living cell. Each gene is a molecule of a chemical called DNA which acts like a master code to determine characteristics of the individual. When the living cells reproduce themselves, by dividing in two the DNA is reproduced exactly. Genetic engineering brings about a specific mutation (changes in the structure of a DNA molecule) in a specific gene. Once scientists determine the gene or groups of genes that contain the characteristics that they want to change, a computer maps the exact structure of the DNA molecule, locating the part that must be removed and replaced by new coding material that will change the information that the gene sends to the body. (15)

Some biotech companies are concentrating their efforts in the field of tissue engineering and fabrication of human organs. While others are turning their attention to unde rstanding how genes switch on and off and interact with their environment to cause genetic diseases. Still others have dedicated their energies to creating artificial human chromosomes, a development that could lead to the customized design of genetic traits in the sex cells, or in the embryonic cells just after conception.

Scientists are projecting that by the year 2011, they would have learned how to program the development of cells that could be transplanted into humans. However, it will take many more years before theyre are able to fool cells to develop into an entirely new organ like a liver or a kidney.

Researchers hope to move beyond the notion of transplants and into the era of fabrication, and are already well along in research to fabricate human heart valves, breasts, ears, cartilage, noses and other body parts. (16) Following the wisdom of Robert Langer and Dr. Joseph P. Vicanti, leaders in this field, Rifkin agrees that The idea is to make organs, rather than simply move them. Researchers in this field predict that by the year 2020 ninety-five percent of human body parts will be replaceable with laboratory grown organs.

One example of how this extraordinary technology would work may be told in the story of a ten year old boy into whom a laboratory- grown human organ was expected to be transplanted in 1998. At Bostons Childrens Hospital, director of tissue engineering at Harvard Medical School, Dr. Anthony Atala grew a human bladder in a glass jar. Atalas research team seeded a plastic scaffolding made to represent the three dimensional shape of a bladder with bladder cells from the patient. The human cells grew over the frame in the laboratory jar and was expected to be transplanted- making it the first tissue-engineered organ ever transplanted into a human. What should happen with this new technology is -eventually the scaffolding over which the cells had been growing will be destroyed by the patients own enzymes, leaving a fully functioning human bladder. (17)

While all of these things might possibly result from genetic engineering, many believe that there is great danger in man altering the order of nature. Altering genes in humans could have dramatically different results than those discovered in lab mice. The human body tends to reject anything foreign, like a virus carrying a corrective gene into a diseased cell. (18) So far, experimental treatment has been confined to treating life -threatening diseases and altering somatic cells which pass on altered genes to future generations. Where should lines of human intervention be drawn?

We likely cant count on parents-to-be who wish to choose physical characteristics, personalities or talents of their children. It is now possible to screen thousands of genes within individual embryos. Scientists are developing ways in which to remove or replace genes in individuals so as to change their individual attributes. With enough money the perspective parent will be able to include whatever traits he/ she desires in the offspring Genetic screening also makes it possible to determine what diseases or kind of illness that the child is predisposed to.

There is an even greater concern about the misuse of genetic screening. There have been reported cases of discrimination in providing health insurance coverage to people who are known to be predisposed to life-threatening diseases. There are also reported cases of employee discrimination. One such case involved a social worker who was abruptly dismissed from her job when her employee learned that she was predisposed to Huntingtons disease (19)

What does this kind of genetic tracking mean to students in various learning environments? Too often the child who is diagnosed as having a genetic disorder will likely receive less attention and support from teachers who feel that the child will not learn anyway. The handicapped or special need students might well be dismissed totally. For these students the discrimination has social implications far beyond their school years into their adult years, where their genetic profiles will follow them. They will become twice victimized by their genetic

Segregating individuals by their genetic makeup represents a fundamental shift in the exercise of power.(20) Institutions who hold such information also hold a weapon of absolute power. There is also concern about further dividing society into genetically superior and genetically inferior groups. Those who can afford to program superior traits into their fetuses at conception stand to gain biological, social and economic advantages.

from Omnis Future Medical Almanac (partial listing)

When using the information given in this timeline, you will need to check various sources for actual dates of events- given that these dates represent projections and many of them have already occurred. The editors of this book advise its users that they are looking at basic research and ongoing clinical trials, along with the fantasies of medicines brightest minds and dreams that will change the face of health care. The book presents medical sciences cutting edge, but also takes a look at what the future will likely bring. (21)

1986 first human gene therapy trials for ADA and purine nucleaside phosphorylase deficiency begin

. 1987-1990 Genetically engineered drugs to control hemophilia, rheumatoid arthritis, diabetes, heart disease, stress and certain cancers were FDA approved.

1991-1995 Scientists map all fifty cancer genes

1996-2000 Major outline of human gene map is known.

Prenatal genetic screen tests become available for home use. 2001-2010 First human gene therapy traits for Alzheimers and other diseases resulting from defects in more than one gene begin.

2011-2100 Gene transfer therapy for all hereditary diseases becomes standard practice. All hereditary or genetically linked diseases are eradicated.


Introduce the idea of altering ones physical appearance by asking the children which of the following procedures they may consider having done now or in the future through cosmetic surgery? Would anyone have your teeth straightened? Would you go for a hair transplant or permanent weave? Would you consider breast enlargement or reduction?

Explain to the students that these are minor flaws that many consider changing as a way of improving their overall appearances. But there are those that interfere with the quality of ones life and may be necessary in order to save a life or at least provide a greater quality of life.

Engage students in dialog by asking the following questions. If you were born with club feet, would you want to have them surgically corrected? If you were born with a congenital heart disease would you have that corrected?

Now tell them that scientists are working on ways to detect and correct those abnormalities before children are born through genetic engineering.

Have students set up notes for working definitions of the terms found in Vocabulary segment .

Next read the segment entitled Genetic Engineering and its possibilities Handout 1. Allow sufficient time for students to record definitions as they find them in the reading.

Discuss the reading by raising questions that relate to students understanding of the information.. For example ask, From your reading, can you describe the process by which genes are genetically altered ?

Next have students discuss and make notes outlining some of the ways in which genetic engineering technology is intended to be used. After taking notes and some discussion, ask students to express their ideas of what it might mean to be a human being in a world where babies are genetically designed and customized in the womb.

What are some of the positive and negative results of people being identified, stereotyped and discriminated against on the basis of their genotype?

Take some time to survey the Timeline- Handout 2. Open a discussion into the possibilities of these things occurring and some of their implications.

Ask students to elaborate on the following ideas by looking at the positive and negative implications. Will the ability to eliminate certain diseases ensure that there is no sickness or death from poor health? What could it mean to have a life expectancy of 125 or more years?

Find out if students agree with those who support research on human embryos as a step toward eventually having the ability to eliminate certain diseases or are they more inclined to follow the position taken by those who feel that human experimentation is morally unacceptable even if it does provide knowledge for eliminating certain diseases from the body?

Close the lesson segment by posing these questions . What are the risks we take in attempting to design a more perfect human? How much perfection is enough to satisfy whomever seeks improvement through science rather than nature?

The struggle to balance the protection of individual rights, social interests and technology against the founding principles and values declared in the Constitution may take on a whole new meaning in the face of this new biomedical technology. What may appear at first glance as a violation of our right to privacy, may in effect be a protection of those rights for individuals who are not among the rich and the powerful.

What is a citizens constitutional right to privacy as it relates to reproduction choices? Although not stated in the constitution as a fundamental guarantee, the Supreme Court has declared that two types of privacy are protected by the Constitution One type of privacy is interpreted to include the right to make personal decisions. The other covers the right to keep personal information private. It implies freedom to decide without government interference with that choice.

Human Cloning is a reproductive choice and a person has a legal right to choose it as such. If the current ban against human cloning continues it will directly affect the person who chooses cloning as a way of creating a family. That would be a direct interference from government. It would be a violation of the due process clause of the Fourteenth amendment

What are the past decisions handed down by the courts in privacy cases? Earlier Court rulings allowed women the right to choose abortion in Roe v. Wade. Would the same be extended in the choice to create a life The Court has had to acknowledge in vitro fertilization (IVF) as an alternative form of creating life. Would cloning fall into that same category? Yes, it should. It is an alternative form of reproduction, but it is different in that the cloned individual is a genetic duplicate of a previously existing genotype.

Lori Andrews offers this differentiation. Cloning is sufficiently distinct from traditional reproduction or alternative reproduction. It is not a process of genetic mix, but of genetic duplication. It is not reproduction, but a sort of recycling, where a single individuals genome is made into someone else.(22) Will the wisdom of the Court and the logic of their reasoning rulings mentioned above serve as basis for allowing the practice of cloning? Will the idea of cloning require a broader interpretation of the Constitution?

If indeed, cloning is considered a form of reproduction, the Court has been clear on the matter of fundamental rights to privacy in Roe v. Wade (1973) and consequent rulings which followed. Will the Court now reverse itself by upholding a ban on human cloning practice? By doing so is the government violating an individuals right to choose if, when and how to beget a child?

By banning human cloning is government protecting privacy rights in that it stops human experimentation and protects the rights of those who wish not to be cloned? People have few legal rights to their body tissues and genes once they leave the bodies. Under current law, it would be easy for someone to get DNA from a hair follicle, or in a medical setting without permission and there is no legal recourse for reclaiming it or its resulting use.

The right to privacy, simply interpreted is a reasonable expectation to be able to choose. Do scientists expect government should interfere with their ability to make new discoveries and pass them on to the general public? Do infertile couples who wish to have themselves cloned expect government to decide that they should not be cloned?

Do pharmaceutical companies expect to be prohibited from developing new drugs to treat known diseases now that their new genome research has led to a better understanding of what causes the body to break down? If scientists have a better understanding of how genes can be manipulated to send different signal to the body, do they expect that government will deny them the right to do so because of a legal ban?

The government s invasion into the privacy of individuals may be best illustrated in the area of genetic testing. The genetic surveillance and tracking represented by the federally funded Human Genome Project poses enormous threats to our basic rights to privacy and self determination,(23) If everyone is tested and categorized, the potential for misuse of that information is so great that it screams for legislation to prevent genetic discrimination.

This discrimination is very different from what many in this country already experience. What is different are the mechanisms through which it is applied. It is virtually impossible to escape your genetic profile in the workplace, in seeking health care or insurance coverage, in schools and through bills passed by legislators to test a variety of groups, namely prisoners, welfare recipients immigrants and others who are powerless to stop it.

Genetic technologies reflect the power differentials in our society; they do not equally benefit all segments, nor are they meant to.(24) Thus these technologies become social and political weapons in an already divided society.

Read the original here:
00.03.07: Human Cloning, Genetic Engineering and Privacy

Eugenics Board of North Carolina – Wikipedia, the free …

 Eugenics  Comments Off on Eugenics Board of North Carolina – Wikipedia, the free …
Oct 162015

The Eugenics Board of North Carolina (EBNC) was a State Board of the state of North Carolina formed in July 1933 by the North Carolina State Legislature by the passage of House Bill 1013, entitled ‘An Act to Amend Chapter 34 of the Public Laws of 1929 of North Carolina Relating to the Sterilization of Persons Mentally Defective’.[1] This Bill formally repealed a 1929 law,[2] which had been ruled as unconstitutional by the North Carolina Supreme Court earlier in the year.

Over time, the scope of the Board’s work broadened from a focus on pure eugenics to considering sterilization as a tool to combat poverty and welfare costs. Its original purpose was to oversee the practice of sterilization as it pertained to inmates or patients of public-funded institutions that were judged to be ‘mentally defective or feeble-minded’ by authorities. In contrast to other eugenics programs across the United States, the North Carolina Board enabled county departments of public welfare to petition for the sterilization of their clients.[3] The Board remained in operation until 1977. During its existence thousands of individuals were sterilized. In 1977 the N.C. General Assembly repealed the laws authorizing its existence,[4] though it would not be until 2003 that the involuntary sterilization laws that underpinned the Board’s operations were repealed.[5]

Today the Board’s work is repudiated by people across the political, scientific and private spectrum.[citation needed] In 2013, North Carolina passed legislation to compensate those sterilized under the Board’s jurisdiction.[6][7]

The board was made up of five members:[1]

The State of North Carolina first enacted sterilization legislation in 1919.[8] The 1919 law was the first foray for North Carolina into eugenics; this law, entitled “An Act to Benefit the Moral, Mental, or Physical Conditions of Inmates of Penal and Charitable Institutions” was quite brief, encompassing only 4 sections. Provision was made for creation of a Board of Consultation, made up of a member of the medical staff of any of the penal or charitable State institutions, and a representative of the State Board of Health, to oversee sterilization that was to be undertaken when “in the judgement of the board hereby created, said operation would be for the improvement of the mental, moral or physical conditions of any inmate of any of the said institutions”. The Board of Consultation would have reported to both the Governor and the Secretary of the State Board of Health. No sterilizations were performed under the provisions of this law, though its structure was to guide following legislation.[8]

In 1929, two years after the landmark US Supreme Court ruling of Buck v. Bell[9] in which sterilization was ruled permissible under the U.S. Constitution, North Carolina passed an updated law[2] that formally laid down rules for the sterilization of citizens. This law, entitled “An Act to Provide For the Sterilization of the Mentally Defective and Feeble-Minded Inmates of Charitable and Penal Institutions of the State of North Carolina”, was similar to the law which preceded it, although this new Act contained several new provisions.[2]

In contrast to the 1919 law, which had mandated sterilization for the “improvement of the mental, moral or physical condition of any inmate”, the new law added a new and far-reaching condition: “Or for the public good.” This condition, expanding beyond the individual to greater considerations of society, would be built on in the ensuing years.[2]

The 1929 law also expanded the review process to four reviewers, namely: The Commissioner of Charities and Public Welfare of North Carolina, The Secretary of the State Board of Health of North Carolina, and the Chief Medical Officers of any two institutions for the “feeble-minded or insane” for the State of North Carolina.[2]

Lastly, the new law also explicitly stated that sterilization, where performed under the Act’s guidelines, would be lawful and that any persons who requested, authorized or directed proceedings would not be held criminally or civilly liable for actions taken. Under the 1929 law, 49 recorded cases took place in which sterilization was performed.[10]

In 1933, the North Carolina State Supreme Court heard Brewer v. Valk,[11] an appeal from Forsyth County Superior Court, in which the Supreme Court upheld that the 1929 law violated both the U.S. Constitution’s 14th Amendment and Article 1, Section 17 of the 1868 North Carolina State Constitution.[12] The Supreme Court noted that property rights required due process, specifically a mechanism by which notice of action could be given, and hearing rights established so that somebody subject to the sterilization law had the opportunity to appeal their case. Under both the U.S. Constitution and the N.C. State Constitution in place at the time, the Supreme Court ruled that the 1929 law was unconstitutional as no such provisions existed in the law as written.[11]

The North Carolina General Assembly went on in the wake of Brewer v. Valk to enact House Bill 1013,[1] removing the constitutional objections to the law, thereby forming the Eugenics Board and creating the framework which would remain in force for over thirty years. The Board was granted authority over all sterilization proceedings undertaken in the State, which had previously been devolved to various governing bodies or heads of penal and charitable institutions supported in whole or in part by the State.[2]

In the 1970s the Eugenics Board was moved around from department to department, as sterilization operations declined in the state. In 1971, an act of the legislature transferred the EBNC to the then newly created Department of Human Resources (DHR), and the secretary of that department was given managerial and executive authority over the board.[13]

Under a 1973 law, the Eugenics Board was transformed into the Eugenics Commission. Members of the commission were appointed by the governor, and included the director of the Division of Social and Rehabilitative Services of the DHR, the director of Health Services, the chief medical officer of a state institution for the feeble-minded or insane, the chief medical officer of the DHR in the area of mental health services, and the state attorney general.

In 1974 the legislature transferred to the judicial system the responsibility for any proceedings.

1976 brought a new challenge to the law with the case of In re Sterilization of Joseph Lee Moore[14] in which an appeal was heard by the North Carolina Supreme Court. The petitioner’s case was that the court had not appointed counsel at State expense to advise him of his rights prior to sterilization being performed. While the court noted that there was discretion within the law to approve a fee for the service of an expert, it was not constitutionally required. The court went on to declare that the involuntary sterilization of citizens for the public good was a legitimate use of the police power of the state, further noting that “The people of North Carolina have a right to prevent the procreation of children who will become a burden on the state.” The ruling upholding the constitutionality was notable in both its relatively late date (many other States had ceased performing sterilization operations shortly after WWII) and its language justifying state intervention on the grounds of children being a potential burden to the public.[14]

The Eugenics Commission was formally abolished by the legislature in 1977.[4][15]

In 2003, the N.C. General Assembly formally repealed the last involuntary sterilization law, replacing it with one that authorizes sterilization of individuals unable to give informed consent only in the case of medical necessity. The law explicitly ruled out sterilizations “solely for the purpose of sterilization or for hygiene or convenience.”[5][16]

At the time of the Board’s formation there was a body of thought that viewed the practice of eugenics as both necessary for the public good and for the private citizen. Following Buck v. Bell, the Supreme Court was often cited both domestically and internationally as a foundation for eugenics policies.

In Buck v. Bell Oliver Wendell Holmes wrote, in support of eugenics policy, that

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.[9]

Despite the Supreme Court rulings in support of eugenics as constitutionally permitted, even as late as 1950 some physicians in North Carolina were still concerned about the legality of sterilization. Efforts were made to reassure the medical community that the laws were both constitutionally sound and specifically exempting physicians from liability.[17]

Framing eugenics as supporting the public good was fundamental to how the law was written. It was argued that both for the benefit of the private citizen, and for the costs to society of future possible childbirths, eugenics were a sound and moral way to proceed. This was stated in the Board’s manual of policies and procedures, in which the practice was justified:[18]

No Place For Sentimentality

There can be no place for sentimentality in solving the problems of the mental health of our citizens. We would be less than human were we to feel no compassion for our unfortunates. But it is a peculiar paradox of human nature that while the best stock of our people is being lost on the battle fronts of the world, we make plans for the betterment and the coddling of our defectives.

In the press, opinion articles were published arguing for a greater use of eugenics, in which many of the reasons above were cited as justification. Even the Winston-Salem Journal, which would be a significant force in illuminating North Carolina’s past eugenics abuses in the modern era, was not immune. In 1948 the newspaper published an editorial entitled “The Case for Sterilization – Quantity vs. Quality” that went into great detail extolling the virtues of ‘breeding’ for the general public good.[20]

North Carolina’s Selective Sterilization Law


It Saves…

Proponents of eugenics did not restrict its use to the ‘feeble-minded’. In many cases, more ardent authors included the blind, deaf-mutes, and people suffering from diseases like heart disease or cancer in the general category of those who should be sterilized.[22] The argument was twofold; that parents likely to give birth to ‘defective’ children should not allow it, and that healthy children borne to ‘defective’ parents would be doomed to an ‘undesirable environment’.[23]

Wallace Kuralt, Mecklenburg County’s welfare director from 1945 to 1972, was a leader in transitioning the work of state eugenics from looking only at medical conditions to considering poverty as a justification for state sterilization. Under Kuralt’s tenure, Mecklenburg county became far and away the largest source of sterilizations in the state. He supported this throughout his life in his writings and interviews, where he made plain his conviction that sterilization was a force for good in fighting poverty. In a 1964 interview with the Charlotte Observer, Kuralt said:

“When we stop to reflect upon the thousands of physical, mental and social misfits in our midst, the thousands of families which are too large for the family to support, the one-tenth of our children born to an unmarried mother, the hoard of children rejected by parents, is there any doubt that health, welfare and education agencies need to redouble their efforts to prevent these conditions which are so costly to society?”[19][24]

Among public and private groups that published articles advocating for eugenics, the Human Betterment League was a significant advocate for the procedure within North Carolina. This organization, founded by Procter & Gamble heir Clarence Gamble provided experts, written material and monetary support to the eugenics movement. Many pamphlets and publications were created by the league advocating the groups position which were then distributed throughout the state. One pamphlet entitled ‘You Wouldn’t Expect…’ laid out a series of rhetorical questions to argue the point that those considered ‘defective’ were unable to be good parents.[21]

While it is not known exactly how many people were sterilized during the lifetime of the law, the Task Force established by Governor Beverly Perdue estimated the total at around 7,500. They provided a summary of the estimated number of operations broken down by time period. This does not include sterilizations that may have occurred at a local level by doctors and hospitals.[10][25]

The report went on to provide a breakdown by county. There were no counties in North Carolina that performed no operations, though the spread was marked, going from as few as 4 in Tyrrell county, to 485 in Mecklenburg county.[10]

Some research into the historical data in North Carolina has drawn links between race and sterilization rates. One study performed in 2010 by Gregory Price and William Darity Jr described the practice as “racially biased and genocidal”. In the study, the researchers showed that as the black population of a county increased, the number of sterilizations increased disproportionately; that black citizens were more likely, all things being equal, to being recommended for sterilization than whites.[26]

Poverty and sterilization were also closely bound. Since social workers concerned themselves with those accepting welfare and other public assistance, there was a strong impetus to recommending sterilization to families as a means of controlling their economic situation. This was sometimes done under duress, when benefits were threatened as a condition of undergoing the surgery.[27]

What made the picture more complicated was the fact that in some cases, individuals sought out sterilization. Since those in poverty had fewer choices for birth control, having a state-funded procedure to guarantee no further children was attractive to some mothers. Given the structure of the process however, women found themselves needing to be described as unfit mothers or welfare burdens in order to qualify for the program, rather than simply asserting reproductive control.[3]

Many stories from those directly affected by the Board’s work have come to light over the past several years. During the hearings from the NC Justice for Sterilization Victims Foundation many family members and individuals personally testified to the impact that the procedures had had on them.

NCEB Case Summary: Elaine Riddick

This thirteen year old girl expects her first child in March 1968….She has never done any work and gets along so poorly with others that her school experience was poor. Because of Elaine’s inability to control herself, and her promiscuity – there are community reports of her “running around” and out late at night unchaperoned, the physician has advised sterilization….This will at least prevent additional children from being born to this child who cannot care for herself, and can never function in any way as a parent.

Elaine Riddick is a fifty-one-year-old African American woman who was born in Perquimans County, North Carolina. Born into a poor family, one of seven children, the family was split up by the County Welfare department after her parents were deemed to be unfit. Elaine and one sister were sent to live with her grandmother, while the remaining five were sent to an orphanage. It was shortly after this family upheaval, when Elaine was 13, that she was raped by a 20-year-old man with a history of assault and incarceration. Elaine subsequently became pregnant.

When the social worker, Marion Payne, assigned to the Riddick family found out that Elaine was pregnant,[29] she pressured Elaine’s grandmother into signing a consent form for sterilization (Riddick’s grandmother, being illiterate, signed the form with a simple ‘X’ symbol). On March 5, 1968, when Elaine was 14 years old, she was sterilized under the authority of the board. The procedure took place hours after Elaine had given birth to a son.[30] Riddick learned only years later the extent of the procedure, testifying to its effect over her life in a lawsuit brought against the state of North Carolina with the assistance of the ACLU in 1974. She cited failed relationships, physical pain and suffering, and psychological trauma. Unfortunately for Riddick, her lawsuit did not end in success; a jury found against her, and the NC Supreme court refused to hear her case. It would not be until the hearings of the NC Justice for Sterilization Victims Foundation that her story was to be widely heard once more.[31][32]

Junius Wilson was born in 1908 in North Carolina and grew up near Wilmington. In 1916 he was sent to the North Carolina School for the Colored Deaf and the Blind, a segregated state school in Raleigh that was the first southern school for black deaf children. Since this was a segregated school, students there were not given the resources of other schools. They were not taught American Sign Language and developed their own system of communication. This worked within the institution, but because it was their own, it did not travel, and so students and deaf from other schools were unable to understand them.[33]

Wilson stayed there for six years, learning rudimentary sign language, until a minor infraction lead to his expulsion. While at home in Castle Hayne, Wilson came to the attention of the legal system when he was accused of the attempted rape of a relative. It is unclear whether the charge had merit – biographers speculated that his misunderstood behavior stemming from communication difficulties may have led to the situation – but what is not in doubt is that in 1925 Wilson was declared legally insane by a court and committed to the state Hospital for the Colored Insane in Goldsboro, North Carolina, which became Cherry Hospital in 1959.[34] In 1932 he was surgically castrated under the provisions of the eugenics laws in place.[35]

Wilson would remain committed to the state facility for decades. In 1990, he was given a new social worker, John Wasson. Wasson came to find out that not only was Wilson not mentally disabled, but that the hospital staff had known for years that he was not. To compound the situation, the legal charges against Wilson dating back to 1925 had been dismissed in 1970; put bluntly, for twenty years he had been committed to the hospital without legal justification. In interviews with hospital staff, Wasson found that it had been considered the most ‘benevolent’ course of action, since Wilson was thoroughly institutionalized at that point, with many of the same difficulties in learning and communication that had been his burden since birth.

Wasson instigated the legal challenge to Wilson’s incarceration. In 1992 Wilson was formally declared a free man. Since he had no close relatives or family members able to care for him in his advanced age, a cottage was found for him on the grounds of Cherry Hospital. Wilson would live there until his death in 2001.[36][37]

Not all who testified before the Committee were sterilized by the Eugenics Board directly. In many cases people who were sterilized were operated on by local clinics and doctors. It was argued that in many of these cases patients were not fully educated as to the nature of the procedure and were urged into it by doctors or social workers who were making judgements based upon their patients’ economic situation. Young women of limited means who had multiple children were specifically targeted for sterilization by many case workers.[38]

Mary English was one such case. In her personal testimony she explained that in 1972, she had been newly divorced with three children. She went to see a doctor at a Fayetteville OB/GYN clinic for some medical complaints. The doctor offered her entry into a program that would negate any need for future birth control. English signed the required paperwork, and was sterilized after the birth of her third child. It was years later, when she went back to the doctor to have the procedure reversed, that she found out it was permanent.[39]

English went on to detail her struggles with depression and retold experiences of friends and neighbors who had gone through similar situations at the hands of their own doctors. As for the clinic at which English was sterilized, she claimed that it was still operating, though declined to name it, or the doctor responsible for her sterilization.[40]

The Winston-Salem Journal’s “Against Their Will” documentary, released in 2002, based in part on Joanna Schoen’s research of the North Carolina Eugenics program, is credited with spurring public interest and demands for action to repeal laws and explore the possibility of compensation for affected people. This five part series gave extensive background to the work of the Eugenics Board, with detailed statistics, victim’s stories, and historical information on the broader Eugenics movement in the United States in the Post-WWII era.[29]

Then-Governor Mike Easley offered an apology to victims of the policy in 2002. At the time, North Carolina was the third State in the nation to officially apologize for eugenics practices, following behind Virginia and Oregon though North Carolina was the first State to go beyond a formal apology to actively considering compensation in some form.[41] Easley set up a committee to study the history of the Eugenics Board with instructions to provide recommendations on how to handle what it termed ‘program survivors’. The committee recommended five specific steps:[42]

The recommendations lay dormant in the North Carolina Legislature until 2008, when a study committee was appointed. The House Committee gave its own recommendations which in large part mirrored Easley’s committee’s findings though it went further, in establishing a suggested dollar figure of $20,000 compensation per surviving victim. The House committee also recommended training, the creation of memorials, and documenting survivor experiences, and the creation of a database to store sterilization records for future research. While the House committee recommended setting funds aside for these purposes, the Legislature did not grant funding in 2008.[43] The house committee was co-chaired by State Representative Larry Womble, who has been a public advocate in the state house for victim’s compensation. Womble announced he would be stepping down and not seek re-election after a horrific car crash in late 2011.[44][45]

In 2008, Beverley Perdue was elected Governor of North Carolina. As part of her platform she pledged to take up the sterilization situation.[46] In 2010 Perdue issued an executive order that formed the North Carolina Justice for Sterilization Victims Foundation (NCJSVF).[47]

The Task Force was made up of the following:[6]

The Foundation recommended that compensation be raised to $50,000 per victim, in a 3-2 vote. They also voted for funds for mental health services and historical displays and exhibits documenting the history of sterilization in the state.[10] It is not yet clear how many victims will be satisfied by the amount; many have granted detailed interviews that documented their severe emotional trauma in the wake of the procedures, and have been outspoken in demanding higher sums.[48]

On April 25, 2012, North Carolina’s Gov. Perdue announced that she will put $10.3 million in her budget proposal to allocate towards issues surrounding eugenics. The funds are intended to aid with $50,000 payments to verified North Carolina eugenics victims. The remainder of the monies will be used to support the continued efforts of the NC Justice for Sterilization Victims Foundation as they provide outreach and clearinghouse services to help Eugenics victims. Governor Perdue stated,[49]

We cannot change the terrible things that happened to so many of our most vulnerable citizens, but we can take responsibility for our states mistakes and show that we do not tolerate violations of basic human rights. We must provide meaningful assistance to victims, so I am including this funding in my budget.

Gov. Perdue’s budget proposal is in accordance with the recommendations of the January 2012 final report issued from the Eugenics Compensation Task Force. The board suggested that living victims and those who were not deceased when verified by the foundation receive a tax-free, lump sum payment of $50,000. The N.C. Justice for Sterilization Victims Foundation reports that there is still an increase in the number of confirmed/verified eugenics victims. As of April 25, 2012, 132 people in 51 counties had been matched to the North Carolina’s Eugenics program records.[49]

In 2013, the General Assembly of North Carolina passed an appropriations bill to give compensation, up to $50,000 per person, to individuals sterilized under the authority of the Eugenics Board of North Carolina.[7][50]

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Second Amendment – National Constitution Center

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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.

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Second Amendment – National Constitution Center

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Clinton at private fundraiser: SCOTUS is wrong about the …

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Oct 032015

posted at 6:41 pm on October 2, 2015 by Matt Vespa

At a small private fundraiser in New York, Hillary Clinton slammed the Supreme Court and the National Rifle Association on Second Amendment issues, even going so far as to say that the Court is wrong regarding this provision in our bill of rights. Stephen Gutowski and Alanna Goodman at the Washington Free Beacon obtainedthe audio of this event:

I was proud when my husband took [the National Rifle Association] on, and we were able to ban assault weapons, but he had to put a sunset on so 10 years later. Of course [President George W.] Bush wouldnt agree to reinstate them, said Clinton.

Weve got to go after this, Clinton continued. And here again, the Supreme Court is wrong on the Second Amendment. And I am going to make that case every chance I get.


Im going to speak out, Im going to do everything I can to rally people against this pernicious, corrupting influence of the NRA and were going to do whatever we can, she said.

Clinton argued that the NRA has so intimidated elected members of Congress and other legislative bodies that these people are passing the most absurd laws.

The idea that you can have an open carry permit with an AK-47 over your shoulder walking up and down the aisles of a supermarket is just despicable, she said.

Yet, when one says the Supreme Court is wrong on the Second Amendment, is the former first lady referring to the Heller case? The 2008 D.C. v Heller was a landmark case that said Americans have a constitutional right to own a handgun unrelated to service in a standing militia, but it only applied to federal enclaves. In 2010, McDonald v. Chicago expanded that right to the states.

I have no doubt that Clinton agrees with these views. Im not so sure if she has the guts to pull it off. Yes, her husband did take on the NRA and it partially contributed to the 1994 Democratic wipeout. Speaker of the House Tom Foley (D-OR) became the first sitting speaker since Galusha Grow to lose his re-election bid. Grow was booted in 1862.

Six years later, Democrats still didnt get the picture. The story goes that Vice President Al Gore could have easily become President Gore if he hadnt tried to out-gun control his Democratic rival, Sen. Bill Bradley (D-NJ), in the primaries; a completely unnecessary move since Bradley never polled within striking distance of Gore. The consequence of this was Arkansas, Tennessee, and West Virginia going for Bush. If these three states had been etched into the Gore column, Florida wouldnt have been an issue. Bush could have still won Florida, but Gore would have locked down more than enough electoral votes to win the presidency. Since then, the gun control movement has gone into the bunker.

All Clinton is doing is courting the most progressive elements of the Democratic base, which yearns for a candidate that will challenge the NRA and enact new gun control laws. In reality, Clinton rhetoric on SCOTUS being wrong on the Second Amendment, and her pledge to make that case every chance I get, is the definition of pie-in-the-sky. You need a functioning state-based Democratic political apparatus to place pressure on localities and state legislatures to change the guns laws, file lawsuits, and hope that the Supreme Court will hear arguments again on the Second Amendment. As its been reported before, state-based Democratic parties are all but finished in some states.

This underreported aspect of the Obama era includes the slow, bleeding death of these political operations, which have entered such a state of decrepitude in some areas that Clinton has vowed to rebuild those structures if shes elected president. With no strong Democratic leaders at the local level, no anti-gun voices in the state legislatures, which have become more Republican since 2008, Hillarys crusade to reverse landmark gun rights cases on the Supreme Court seems to be nothing more than slogans for fundraising. Moreover, on the legal front, those who are for Second Amendment freedom appear to be on a winning streak, winning cases in California and Illinois that either expand gun rights, or prevent governing bodies from curtailing them.

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Hate Speech, Sex Speech, Free Speech: Nicholas Wolfson …

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Oct 032015

A powerful indictment of contemporary attacks on free speech, this book argues for a vigorous First Amendment jurisprudence protecting even offensive types of speech. In recent years, political activists, academics, and legal specialists have attacked traditional notions of free speech protection as they concern hate speech, obscenity, and pornography. They have called for changes in Supreme Court doctrine in defining the First Amendment and have argued that the traditional view of free speech actually creates and perpetuates a society in which the weakwomen, minorities, the poorhave no voice. While recognizing their fears, Nicholas Wolfson argues that it is impossible to separate bad speech from good speech without fatally compromising the uniquely American concept of free speech, and that efforts to modify our concept of free speech for a greater egalitarian good can only result in undue state influence over private speech. In a keenly argued analysis, he finds that, in the end, the preservation of free and vigorous speech requires a strong First Amendment protection for even the most hateful of speech.

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Fourth Amendment | United States Constitution |

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Sep 282015

Fourth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Alabama Eugenics

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Sep 262015


Number of victims

There were 224 people who were sterilized, of whom approximately 58% were male. All of the sterilized were deemed mentally deficient. In terms of the total number of people sterilized, Alabama ranks 27th in the United States. Of the 32 states that had sterilization laws, Alabama is the state with the 5th lowest number of sterilizations.

Period during which sterilizations occurred

The period was 1919 to 1935 (Paul p. 246)

Temporal pattern of sterilizations and rate of sterilization

After the passage of the sterilization law in 1919, the number of sterilization appears to have been low. Gosney/Popenoe (p. 194; see data sources) report no sterilizations yet at the end of 1927, but the number for the end of 1929 was 44. After that year, the number of sterilizations increased. The last sterilizations occurred in June 1935 (Paul, p. 246). Between 1930 and 1935, the annual number of sterilization was about 30. The rate of sterilization per 100,000 residents per year was about 1.

Passage of law(s)

According to Edward Larson, Alabama began its long flirtation with eugenicsbefore any other state in the Deep South (Larson, p. 50). At the 1901 meeting of the Medical Association of the State of Alabama (MASA), Dr. William Glassell Sommerville, Trustee of the Alabama Insane Hospitals, declared it a proven fact that the moral disposition for good and evil, including criminal tendenciesare transmitted fromone generation to anotherand is as firmly believed by all scientific men as the fact that parents transmit physical qualities to their children (Dorr, Defective or Disabled?,pp. 383-4). At that same meeting, John E. Purdon stated that it was a proven fact that criminality, insanity, epilepsy, and other alleged manifestations of degraded nerve tissue were hereditary (Larson, 50). He emphasized that [i]t is essentially a state function to retrain the pro-creative powers of the unfit (Larson and Nelson, p. 407). He suggested that the use of sterilization would benefit the race by saying, [e]masculation is the simplest and most perfect plan that can be adapted to secure the perfection of the race (Larson, p. 50). Finally, Purdon explained his belief that the goodness, the greatness, and the happiness of all upon the earth, will be immeasurably advanced, in one or two generations, by the proposed methods (Larson and Nelson, p. 407), and, based on his belief thatweakness begets weaknessfeared that humanitarianism would assist the imperfect individual to escape the consequences of his physical and moral malformation (Dorr, “Honing Heredity,” p. 29).

Over the next decade, MASA was encouraged by many authorities such as physicians and Birminghams medical society to draft a bill to legalize the sterilization of the unfit. In 1911 at the annual MASA meeting, Walter H. Bell of Birmingham declared that any person who would produce children with an inherited tendency to crime, insanity, feeblemindedness, idiocy, or imbecility should be sterilized (Larson, p. 51). He believed that sterilization was an easy, safe and practical method of prevention with no restrictions or punishment attached (Larson and Nelson, p.410).

The MASA, however, continued to delay taking action until 1914 when it created a committee of physicians who would research needful data in regard to defective children, with a purpose to urge upon the state legislature the proper provision for the care of such defectives (Larson, , p. 60). During the 1915 MASA meeting, C.M. Rudolph suggested the formation of a home for mentally ill children. He stressed the importance of segregating the unfit youth because he believed it shrewd to [s]egregate the defectives of one generation to prevent the multiplication of their kind in the next (Larson, p. 60). In this same meeting it was decided that an Alabama Society for Mental Hygiene (ASMH) would be formed and led by William Partlow as a liaison with the National Committee for Mental Hygiene (NCMH) and to survey Alabamas defectives (Larson, p. 60). That year, MASA collectively agreed to support eugenic sterilization (Dorr, Defective or Disabled?, pp. 386-87).

In 1919, the MASA and the ASMH reached their goal. In the next regular session of the State legislator, a bill was passed to create the Alabama Home (Larson and Nelson, p. 413). Buried within the law was a clause granting permission to the superintendent of the Home for the Feeble-Minded in Tuscaloosa, to sterilize its patients. This was the first law passed in Alabama that supported sterilizations (Paul p. 239).

In 1934, Partlow wanted permission to sterilize all discharged patients from the Home (a procedure he was already practicing as superintendent) (Dorr, “Eugenics in Alabama”). Partlow proposed a bill that gave the superintendent of any state hospital for the insane complete power to sterilize any or all patients upon their release. The bill also proposed the creation of a board with three doctors who would have the right to sterilize a larger group of people. Finally, the anticipated bill granted permission for county public health committees to sterilize anyone in a state or local custodial institution (Larson and Nelson, p. 418). Although Partlows bill was passed in both the House and the Senate, the bill was vetoed by Alabamas Governor, Bill Graves after consulting with the Alabama Supreme Court on the bills constitutionality (Larson and Nelson, p. 422). In 1935 the Alabama State Supreme Court viewed the bill and deemed it unconstitutional because it violated the Due Process Clauses of the state and federal constitutionsa sterilization victim would not have the right to appeal to a court against his or her sterilization (Larson and Nelson, p. 422). A second version of the bill was drafted and, similarly, passed in both houses but was vetoed by the Governor (Larson and Nelson, pp. 422-23). Soon after this second veto, Partlow discontinued the practice of sterilization (Larson and Nelson, p. 424).

Partlowsbill, however, was unsuccessfully reintroduced in 1939 and again in 1943. In 1945, legislation was created that asked for the right to sterilize every inmate or person eligible for entrance in the states insane asylums. This bill was passed by the senate but was rejected by the house (Larson and Nelson, p. 426).

Groups identified in the law

In the 1919 law, William Partlow included in his draft the permission for the superintendent of the Home for the Feeble-Minded to sterilize any inmate (Larson, p. 84). Inmates were any person confined in a poor house, jail, an orphanage, or a boarding school in the State (Larson, pp. 48-49). In the 1935 bill, it was proposed that any sexual pervert, Sadist, homosexualist, Masochist, Sodomist, or any other grave form of sexual perversion, or any prisoner who has twice been convicted of rape or imprisoned three times for any offense be sterilized. It was also suggested granting permission to county public health committees to sterilize anyone in a state or local custodial institution (Larson and Nelson, p. 418).An expansion of the law, proposed by Alabama State Health Officer Dr. James Norment Baker, called for the sterilization of anyone committed to state homes for the insane and feebleminded, reformatories, industrial schools, or training schools, , as well as any sexual pervert, Sadist, homosexual, Masochist, Sodomist (Dorr, “Protection,” p. 173) as well as anyone convicted of rape twice. The bill was considered unconstitutional and vetoed by Governor Bill Graves.

Process of the law

In the 1919 law, the superintendent of the Alabama Home for the Feeble-Minded was given the authority to sterilize any inmate (Larson, pp. 48-49). This law held only one limitation on sterilization in the Alabama Home. The superintendent of the Alabama Insane Hospitals had to agree upon the sterilization of the inmates from the Alabama Home for the Feeble-Minded (Larson, pp. 105-06). This absence of safeguards for inmates in the law made it possible for William Partlow to sterilize every inmate of the Home. This law was drafted by Partlow and was the only sterilization law passed in Alabama. Although this law passed, Partlow continued to try to strengthen the power to sterilize in Alabama through other bills. All of his attempts, however, failed.

Precipitating factors and processes

The entire Southern region in general was more hesitant to adopt eugenic ideals for many reasons. One of the most important Southern values was its traditional emphasis on family and parental rights, which eugenics challenged (Larson, p. 8). The Southern sense of family also encouraged relatives to take responsibility for individuals who might otherwise be subject to eugenic remedies in state institutions (Larson, p. 9). Most immigrants in the South came from the British Isles, the same area most Southerners originated from. Subsequently, a community existed in the South including many immigrants, unlike the North and West where Americans focused their eugenic ideas on ethnically diverse immigrants (Larson, p. 9). The strength of Southern religion also played a role in the overall rejection of eugenics in Alabama. Religion lent itself to conceptions of congregations as extended families and many people in the South accordingly apposed segregating the unfit (Larson, pp. 13-14). In comparison with the rest of the United States, Progressivism in the South was relatively weak due to the comparatively small size of its typical carriers, secular groups, urban professional middle classes, and the more educated (Larson, p. 17). Moreover, the Deep South was lagging other regions in biological research programs, as well as scientists and education, which shifted the advocacy of eugenics to state mental health officials and local physicians (Larson, pp. 40-44). The MASA and leaders such as William Partlow were extremely important to the eugenics movement in Alabama. Without the organizations and leaders that were produced from the MASA, Alabama may have never started eugenic practices.

Overall, Alabama was not in favor of sterilization, which is reflected in the comparatively low number of sterilization victims. In general, the people of Alabama were more in favor of segregation of the unfit than sterilization (Larson, pp. 60-63). However, inadequate funding of such facilities for segregating the feeble-minded as well as over-crowding seems to have facilitated a push toward sterilization (Larson, pp. 90-91). Even though mental health surveys placed Alabamas feeble-minded population at more than 7,000 persons, the new facility could accommodate only 160 residents, and was filled within two months of it opening (Larson, p. 90).

Groups targeted and victimized

Among those targeted were males, including some of the delinquent boys who[m] we fear might escape (Larson, p. 106),the poor, mental deficien[ts] and the feebleminded (Larson, p. 151). People who could be committed to the state mental health hospital included people in prison, a poor house, and orphanage, or a state boarding school (Larson, pp. 48-49).

While Alabama never established a facility for feebleminded blacks (see Dorr, Defective or Disabled?,p. 387), Gregory Dorr has argued that the absence of such a facilty should not lead observers to conclude that eugenics in Alabama lackedracist elements, for the limitation ofeugenicsto the sterilization of whites (in contrast to Virginia) reflected the belief that the “betterment” of theblack “race” could not be achieved by such measures. In fact, by the timethe wall of segregation had started to come to down in the 1970s and no longer assured second-class citizenship of Blacks, African Americans had become the targets of extra-institutional and extra-legal sterilizations, reflective of a more general southern racist view that it was necessary”to further protect the white race itself from black folks” (Dorr, “Defective or Disabled?,” p. 383; see also Dorr, Segregation’s Science).

The Relf case

The cause of forced sterilization in Alabama was not helped by the Relf case. By 1973, the focus had moved away from sterilization of the mentally deficient and those imprisoned, to the use of sterilization as birth control. The Relf family was on welfare, and living in a public housing project in Montgomery, Alabama. Two Relf sisters, Minnie Lee, age 14, and Mary Alice, age 12, had been receiving shot of Depo-Provera as a form of long term birth control (Rossoff, p. 6). When the use of the drug was no longer allowed, the mother was mislead into signing a consent form allowing the sterilization of her daughters. Mrs. Relf was unable to read or write, so she signed the form with an X, without any physicians explaining the conditions to her (Roberts, p. 93, Carpia, p.78, Caron, p. 211, Southern Poverty Law Center). She thought she was signing a form consenting to additional shots, when she was actually consenting to sterilizations (Tessler, p. 58). A third daughter, Katie Relf, also received the birth control shots, but refused to open the door to her room when the official came to get the three girls to be sterilized. Because she was 17, she could not be sterilized without her own consent. (Larson and Nelson, p. 440) Later, when Mrs. Relf realized that her daughters had been sterilized, she sued the surgeons and other associated groups for $1,000,000 (Rosoff, p. 6). As a result, a moratorium was placed on federally funded, coerced sterilizations until a decision was reached by the Department of Justice.

Other restrictions placed on those identified in the law or with disabilities in general

In 1919, Alabama passed legislation that made it the first state in the Deep South that made it illegal for people with venereal diseases to marry (Larson, p. 88).

Feeder institutions and institutions where sterilizations were performed

(Photo origin:

The Alabama Home for the Feeble-Minded opened in Tuscaloosa, Alabama in 1919 as a result of the law in favor of a home for the feeble-minded.Two months after the Alabama Home for the Feeble-Minded opening, the institution was completely full of people from poor houses, jails, orphanages, and boarding schools (Larson, pp. 48-49, 90). In 1927, this school was renamed the Partlo State School for Mental Deficients (Larson, p. 106). The school is now known as the Partlow State School and Hospital. Its closure has been announced in 2011 (“W.D. Partlow Developmental Center to close”).


Although the original bill went largely unnoticed by the population (Paul, pp. 239-40), the movement did meet considerable opposition in Alabama. Chief among these objectors were the Catholics, who were entirely against eugenics and any form of birth control in general. Alabama Catholicswrote legislators and spoke out at public hearings in response to their bishops plea to use every means at our disposal to help defeat this bill (Larson, p. 151). Protestants were similarly concerned. A Baptist claimed that he found in the Bible all the warrant he required to vote against the bill (Larson and Nelson, p. 420). Trade unions were also against expanding the sterilization law. As one laborer anxiously said, theres nothing in the bill to prevent a labor man from being railroaded into an institution where he could be sterilized on suspicion of insanity or feeble-mindedness (Larson, p. 141). Similarly, Alabamas Governor, Bill Graves was extremely important to the opposition of eugenics because of his decision to veto the 1935 bill and its revision. He claimed [t]he hoped for good results are not sure enough or great enough to compensate for the hazard to personal rights that would be involved in the execution of the provisions of the Bill (Larson and Nelson, p. 422).

Overall, however, the population in Alabama was perhaps not as supportive of eugenic sterilization laws as in other American states.


Carpia, Myla F. Thyrza. 1995. “Lost Generations: The Involuntary Sterilization of American Indian Women.” Master’s Thesis, Department of American Indian Studies, Arizona State University.

Dorr, Gregory M. 2006. Defective or Disabled?: Race, Medicine, and Eugenics in Progressive Era Virginia and Alabama. Journal of the Gilded Age and Progressive Era 5, 4: 359-92.

——-. 2008. Segregation’s Science: Eugenics and Society in Virginia. Charlottesville: University of Virginia Press.

Dorr, Gregory M. 2011. “Protection or Control: Women’s Health, Sterilization Abuse, and Relf v. Weinberger.” Pp. 161-90 in A Century of Eugenics in America, edited by Paul Lombardo. Bloomington: Indiana University Press. Larson, Edward. 1995. Sex, Race, and Science: Eugenics in the Deep South. Baltimore: Johns Hopkins University Press. Larson, Edward J., and Leonard J. Nelson.1992. Involuntary Sexual Sterilization of Incompetents in Alabama: Past, Present, and Future. Alabama Law Review 43: 399-444. Noll, Steven. 1995. Feeble-Minded in Our Midst: Institutions for the Mentally Retarded in the South, 1900-1940. Chapel Hill: University of North Carolina Press.

——-.2005. The Public Face of Southern Institutions for the Feeble-Minded. The Public Historian 27, 2: 25-42. Paul, Julius. 1965. ‘Three Generations of Imbeciles Are Enough’: State Eugenic Sterilization Laws in American Thought and Practice. Washington, D.C.: Walter Reed Army Institute of Research.

Relf Original Complaint. Available at

Roberts, Dorothy E. 1997. Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. New York: Pantheon Books.

Rosoff, Jeannie I. 1973. The Montgomery Case. The Hastings Center Report 3, 4:6.

Southern Poverty Law Center. Relf v. Weinberger. Available at

Tarwater, James S. 1964. The Alabama State Hospitals and the Partlow State School and Hospitals. New York: Newcomer Society in North America.

Tessler, Suzanne. 1976. Compulsory Sterilization Practices. Frontiers: A Journal of Women Studies 1, 2: 52-66.

“W.D. Partlow Developmental Center to close.” Tuscaloosa News 4 March 2001. Available at

Alabama Eugenics

Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

 Fourth Amendment  Comments Off on Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII …
Sep 242015



The Fourth Amendment of the U.S. Constitution provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The ultimate goal of this provision is to protect peoples right toprivacy and freedom from arbitrary governmentalintrusions. Private intrusions not acting in the color of governmental authority areexempted from theFourth Amendment.

To havestanding to claim protection under the Fourth Amendment, one mustfirst demonstrate an expectation of privacy, which is not merely a subjective expectation in mindbut an expectationthat society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches ofprivate premises are mostly prohibited unless there are justifiable exceptions; on the other hand,a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. AnExpectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.

A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure. States can always establish higher standards for searches and seizures than theFourth Amendmentrequires, but states cannot allow conduct that violates the Fourth Amendment.

The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.


The courts must determine what constitutes asearchorseizureunder theFourth Amendment. If the conduct challenged does not fall within theFourth Amendment, the individualwill not enjoy protection under Fourth Amendment.

A. Search

A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual’s reasonableexpectation of privacy.

Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under theFourth Amendment when supported by probable cause and conducted in a reasonable manner.

Adog-sniff inspectionis invalid under theFourth Amendmentif the the inspection violates areasonable expectation of privacy. Electronic surveillance is also considered a search under theFourth Amendment.

B. Seizure of a Person

A seizure of a person, within the meaning of theFourth Amendment, occurs when the police’s conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is notfree to ignore the police presence and leave at hiswill.

Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons,the use of forceful language, andphysical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individualwho ignores the officers request and walks away has not been seized for Fourth Amendment purposes.

An arrest warrant is preferred but not required to make alawful arrest under theFourth Amendment. A warrantless arrest may be justified whereprobable cause and urgent need are presentprior to the arrest. Probable cause is present when the police officer has a reasonable beliefin the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, apolice officer might arrest a suspect to prevent the suspects escape or to preserve evidence. A warrantless arrest may be invalidatedif the police officer failsto demonstrate exigent circumstances.

The ability to makewarrantless arrests are commonly limited by statutes subject to the due process guaranty of theU.S. Constitution. A suspect arrested without a warrant is entitled toprompt judicial determination, usually within 48 hours.

There are investigatory stops that fall shortof arrests, but nonetheless, theyfall within Fourth Amendmentprotection.For instance, police officers can perform aterry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

Anofficers reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.

C. Seizure of Property

A seizure of property, within the meaning of theFourth Amendment, occurs when there is some meaningful interference with anindividuals possessory interests in the property.

In some circumstances, warrantless seizures of objects in plain view do notconstitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.


A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable causethata search or seizure is justified. Anauthority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.

The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical. For instance, in State v. Helmbright 990 N.E.2d 154, Ohiocourt held that awarrantless search of probationer’s person or place of residence complies with the Fourth Amendment if the officer who conducts the search possesses reasonable grounds to believe that the probationer has failed to comply with the terms of hisprobation.

Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.

There is no general exception to theFourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generallyand, if accepted, whether the exception should include bothphysical searches and electronic surveillance.


All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure.

Searches and seizures with a warrant satisfy the reasonableness requirement. Warrantless searches and seizures are presumed to be unreasonable unless they fall within a few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individuals right toprivacy and the need to promote government interests and special needs. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzingthe reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure andthe manner in which the search or seizure is conducted.


Under the exclusionary rule, any evidence obtained inviolation of theFourth Amendmentwill be excluded from criminal proceedings. There are a few exceptions to this rule.


In recent years, the Fourth Amendment’s applicability inelectronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been anincreasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. TheFourth Amendment applies to the search and seizure ofelectronic devices.

Many electronic search cases involvewhether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectationof privacy with regard to information stored on a company-owned computer. In the 2010 case ofCity of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.


Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering communitys ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislations provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.

One provision permitslaw enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrantrequires a much lower evidentiary showing. A highlycontroversial provision of the Act includespermission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrants issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and inviolation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).

The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaningthe person or persons responsible for complying cannot mention theexistence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using anNSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.

See constitutional amendment.

See the article here:
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NSA warrantless surveillance (200107) – Wikipedia, the …

 NSA  Comments Off on NSA warrantless surveillance (200107) – Wikipedia, the …
Sep 192015

The NSA warrantless surveillance controversy (“warrantless wiretapping”) concerns surveillance of persons within the United States during the collection of allegedly foreign intelligence by the U.S. National Security Agency (NSA) as part of the touted war on terror. Under this program, referred to by the Bush administration as the terrorist surveillance program,[1] part of the broader President’s Surveillance Program, the NSA was authorized by executive order to monitor, without search warrants, the phone calls, Internet activity (Web, e-mail, etc.), text messaging, and other communication involving any party believed by the NSA to be outside the U.S., even if the other end of the communication lies within the U.S. However, it has been discovered that all U.S. communications have been digitally cloned by government agencies, in apparent violation of unreasonable search and seizure. The excuse given to avoid litigation[citation needed] was that no data hoarded would be reviewed until searching it would be legal. But no excuse has been offered the initial seizure of the data which is also illegal,[citation needed] according to the U.S. Constitution.[citation needed]

Critics, however, claimed that the program was in an effort to attempt to silence critics of the Bush Administration and its handling of several controversial issues during its tenure. Under public pressure, the Bush administration allegedly ceased the warrantless wiretapping program in January 2007 and returned review of surveillance to the FISA court.[2] Subsequently, in 2008 Congress passed the FISA Amendments Act of 2008, which relaxed some of the original FISA court requirements.

During the Obama Administration, the NSA has allegedly continued operating under the new FISA guidelines despite campaign promises to end warrantless wiretapping.[3] However, in April 2009 officials at the United States Department of Justice acknowledged that the NSA had engaged in “overcollection” of domestic communications in excess of the FISA court’s authority, but claimed that the acts were unintentional and had since been rectified.[4]

All wiretapping of American citizens by the National Security Agency requires a warrant from a three-judge court set up under the Foreign Intelligence Surveillance Act. After the 9/11 attacks, Congress passed the Patriot Act, which granted the President broad powers to fight a war against terrorism. The George W. Bush administration used these powers to bypass the FISA court and directed the NSA to spy directly on al-Qaeda in a new NSA electronic surveillance program. Reports at the time indicate that an “apparently accidental” “glitch” resulted in the interception of communications that were purely domestic in nature.[5] This action was challenged by a number of groups, including Congress, as unconstitutional.

The exact scope of the program remains secret, but the NSA was provided total, unsupervised access to all fiber-optic communications going between some of the nation’s largest telecommunication companies’ major interconnected locations, including phone conversations, email, web browsing, and corporate private network traffic.[6] Critics said that such “domestic” intercepts required FISC authorization under the Foreign Intelligence Surveillance Act.[7] The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war and that the warrant requirements of FISA were implicitly superseded by the subsequent passage of the Authorization for Use of Military Force Against Terrorists (AUMF).[8] FISA makes it illegal to intentionally engage in electronic surveillance under appearance of an official act or to disclose or use information obtained by electronic surveillance under appearance of an official act knowing that it was not authorized by statute; this is punishable with a fine of up to $10,000 or up to five years in prison, or both.[9] In addition, the Wiretap Act prohibits any person from illegally intercepting, disclosing, using or divulging phone calls or electronic communications; this is punishable with a fine or up to five years in prison, or both.[10]

After an article about the program, (which had been code-named Stellar Wind), was published in The New York Times on December 16, 2005, Attorney General Alberto Gonzales confirmed its existence.[11][12][13]The Times had posted the exclusive story on their website the night before, after learning that the Bush administration was considering seeking a Pentagon-Papers-style court injunction to block its publication.[14]Bill Keller, the newspaper’s former executive editor, had withheld the story from publication since before the 2004 Presidential Election, and the story that was ultimately published was essentially the same as reporters James Risen and Eric Lichtblau had submitted in 2004. The delay drew criticism from some in the press, arguing that an earlier publication could have changed the election’s outcome.[15] In a December 2008 interview with Newsweek, former Justice Department employee Thomas Tamm revealed himself to be the initial whistle-blower to The Times.[16] The FBI began investigating leaks about the program in 2005, with 25 agents and 5 prosecutors on the case.[17]

Gonzales said the program authorized warrantless intercepts where the government had “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda” and that one party to the conversation was “outside of the United States.”[18] The revelation raised immediate concern among elected officials, civil right activists, legal scholars and the public at large about the legality and constitutionality of the program and the potential for abuse. Since then, the controversy has expanded to include the press’ role in exposing a classified program, the role and responsibility of the US Congress in its executive oversight function and the scope and extent of presidential powers under Article II of the Constitution.[19]

In mid-August 2007, a three-judge panel of the United States Court of Appeals for the Ninth Circuit heard arguments in two lawsuits challenging the surveillance program. The appeals were the first to reach the court after dozens of civil suits against the government and telecommunications companies over NSA surveillance were consolidated last year before the chief judge of the Northern District of California, Vaughn R. Walker. One of the cases is a class-action lawsuit against AT&T, focusing on allegations that the company provided the NSA with its customers’ phone and Internet communications for a vast data-mining operation. Plaintiffs in the second case are the al-Haramain Foundation Islamic charity and two of its lawyers.[20][21]

On November 16, 2007, the three judgesM. Margaret McKeown, Michael Daly Hawkins, and Harry Pregersonissued a 27-page ruling that the charity, the Al-Haramain Islamic Foundation, could not introduce a key piece of evidence in its case because it fell under the government’s claim of state secrets, although the judges said that “In light of extensive government disclosures, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret.”[22][23]

In an August 14, 2007, question-and-answer session with the El Paso Times which was published on August 22, Director of National Intelligence Mike McConnell confirmed for the first time that the private sector helped the warrantless surveillance program. McConnell argued that the companies deserved immunity for their help: “Now if you play out the suits at the value they’re claimed, it would bankrupt these companies”.[24] Plaintiffs in the AT&T suit subsequently filed a motion with the court to have McConnell’s acknowledgement admitted as evidence in their case.[25]

The program may face an additional legal challenge in the appeal of two Albany, New York, men convicted of criminal charges in an FBI anti-terror sting operation. Their lawyers say they have evidence the men were the subjects of NSA electronic surveillance, which was used to obtain their convictions but not made public at trial or made available in response to discovery requests by defense counsel at that time.[26]

In an unusual related legal development, on October 13, 2007, The Washington Post reported that Joseph P. Nacchio, the former CEO of Qwest Communications, is appealing an April 2007 conviction on 19 counts of insider trading by alleging that the government withdrew opportunities for contracts worth hundreds of millions of dollars after Qwest refused to participate in an unidentified National Security Agency program that the company thought might be illegal. According to court documents unsealed in Denver in early October as part of Nacchio’s appeal, the NSA approached Qwest about participating in a warrantless surveillance program more than six months before the Sep 11, 2001, attacks which have been cited by the government as the main impetus for its efforts. Nacchio is using the allegation to try to show why his stock sale should not have been considered improper.[27] According to a lawsuit filed against other telecommunications companies for violating customer privacy, AT&T began preparing facilities for the NSA to monitor “phone call information and Internet traffic” seven months before 9/11.[28]

On August 17, 2007, the Foreign Intelligence Surveillance Court said it would consider a request filed by the American Civil Liberties Union which asked the intelligence court to make public its recent, classified rulings on the scope of the government’s wiretapping powers. Judge Colleen Kollar-Kotelly, presiding judge of the FISC, signed an order calling the ACLU’s motion “an unprecedented request that warrants further briefing.”[29] The FISC ordered the government to respond on the issue by August 31, saying that anything involving classified material could be filed under court seal.[30][31] On the August 31 deadline, the National Security Division of the Justice Department filed a response in opposition to the ACLU’s motion with the court.[32]

In previous developments, the case ACLU v. NSA was dismissed on July 6, 2007 by the United States Court of Appeals for the Sixth Circuit.[33] The court did not rule on the spying program’s legality. Instead, its 65-page opinion declared that the American Civil Liberties Union and the others who brought the case including academics, lawyers and journalists did not have the legal standing to sue because they could not demonstrate that they had been direct targets of the clandestine surveillance.[34] Detroit District Court judge Anna Diggs Taylor had originally ruled on August 17, 2006 that the program is illegal under FISA as well as unconstitutional under the First and Fourth amendments of the United States Constitution.[35][36][37]Judicial Watch, a watchdog group, discovered that at the time of the ruling Taylor “serves as a secretary and trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case.”[38] On February 19, 2008, the U.S. Supreme Court, without comment, turned down an appeal from the American Civil Liberties Union, letting stand the earlier decision dismissing the case.[39]

On September 28, 2006 the U.S. House of Representatives passed the Electronic Surveillance Modernization Act (H.R. 5825).[40] That bill now has been passed to the U.S. Senate, where three competing, mutually exclusive, billsthe Terrorist Surveillance Act of 2006 (S.2455) (the DeWine bill), the National Security Surveillance Act of 2006 (S.2455) (the Specter bill), and the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006 (S.3001) (the Specter-Feinstein bill) were themselves referred for debate to the full Senate by the Senate Judiciary Committee on September 13, 2006.[41] Each of these bills would in some form broaden the statutory authorization for electronic surveillance, while still subjecting it to some restrictions. The Specter-Feinstein bill would extend the peacetime period for obtaining retroactive warrants to seven days and implement other changes to facilitate eavesdropping while maintaining FISA court oversight. The DeWine bill, the Specter bill, and the Electronic Surveillance Modernization Act (passed by the House) would all authorize some limited forms or periods of warrantless electronic surveillance subject to additional programmatic oversight by either the FISC (Specter bill) or Congress (DeWine and Wilson bills).

On January 17, 2007, Attorney General Alberto Gonzales informed U.S. Senate leaders by letter that the program would not be reauthorized by the President.[2] “Any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court,” according to his letter.[42]

On September 18, 2008, the Electronic Frontier Foundation (EFF), an Internet-privacy advocacy group, filed a new lawsuit against the NSA, President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other government agencies and individuals who ordered or participated in the warrantless surveillance. They sued on behalf of AT&T customers to seek redress for what the EFF alleges to be an illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. An earlier, ongoing suit by the EFF may be bogged down by the recent changes to FISA provisions, but these are not expected to impact this new case.[43][44]

On January 23, 2009, the administration of President Barack Obama adopted the same position as his predecessor when it urged U.S. District Judge Vaughn Walker to set aside a ruling in Al-Haramain Islamic Foundation et al. v. Obama, et al.[45] The Obama administration also sided with the former administration in its legal defense of July 2008 legislation that immunized the nation’s telecommunications companies from lawsuits accusing them of complicity in the eavesdropping program, according to testimony by Attorney General Eric Holder.[46]

On March 31, 2010, Judge Vaughn R. Walker, chief judge of the Federal District Court in San Francisco, ruled that the National Security Agency’s program of surveillance without warrants was illegal when it intercepted phone calls of Al Haramain. Declaring that the plaintiffs had been “subjected to unlawful surveillance”, the judge said the government was liable to pay them damages.[47]

In 2012, the Ninth Circuit vacated the judgment against the United States and affirmed the district court’s dismissal of the claim against Mueller.[48]

The Trailblazer Project, an NSA IT project that began in 2000, has also been linked to warrantless surveillance. It was chosen over ThinThread, which had included some privacy protections. Three ex-NSA staffers, William Binney, J. Kirke Wiebe, and Ed Loomis, all of whom had quit NSA over concerns about the legality of the agency’s activities, teamed with Diane Roark, a staffer on the House Intelligence Committee, to ask the Inspector General to investigate. A major source for the IG report was Thomas Andrews Drake, an ex-Air Force senior NSA official with an expertise in computers. Siobhan Gorman of The Baltimore Sun published a series of articles about Trailblazer in 20062007.

The FBI agents investigating the 2005 The New York Times story eventually made their way to The Baltimore Sun story, and then to Binney, Wiebe, Loomis, Roark, and Drake. In 2007 armed FBI agents raided the houses of Roark, Binney, and Wiebe. Binney claimed they pointed guns at his head. Wiebe said it reminded him of the Soviet Union. None were charged with crimes except for Drake. In 2010 he was indicted under the Espionage Act of 1917, as part of Obama’s unprecedented crackdown on leakers.[49][50] The charges against him were dropped in 2011 and he pled to a single misdemeanor.

The 1978 Foreign Intelligence Surveillance Act (FISA) regulates U.S. government agencies’ carrying out of physical searches, and electronic surveillance, wherein a significant purpose is the gathering of foreign intelligence information. “Foreign intelligence information” is defined in 50 U.S.C.1801 as information necessary to protect the U.S. or its allies against actual or potential attack from a foreign power, sabotage or international terrorism. FISA defines a “foreign power” as a foreign government or any faction(s) of a foreign government not substantially composed of US persons, or any entity directed or controlled by a foreign government. FISA provides for both criminal and civil liability for intentional electronic surveillance under color of law except as authorized by statute.

FISA provides two documents for the authorization of surveillance. First, FISA allows the Justice Department to obtain warrants from the Foreign Intelligence Surveillance Court (FISC) before or up to 72 hours after the beginning of the surveillance. FISA authorizes a FISC judge to issue a warrant for the electronic cameras if “there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power.” 50 U.S.C. 1805(a)(3). Second, FISA permits the President or his delegate to authorize warrantless surveillance for the collection of foreign intelligence if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”. 50 U.S.C. 1802(a)(1).[51]

Soon after the September 11, 2001 attacks U.S. President George W. Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of certain telephone calls without obtaining a warrant from the FISC as stipulated by FISA (see 50 U.S.C.1802 50 U.S.C.1809 ). The complete details of the executive order are not known, but according to statements by the administration,[52] the authorization covers telephone calls originating overseas from or to a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US. The legality of surveillance involving US persons and extent of this authorization is at the core of this controversy which has steadily grown to include:

About a week after the 9/11 attacks, Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) which authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The administration has argued that the language used in the AUMF implicitly authorized the President to exercise those powers “incident to the waging of war”, including the collection of enemy intelligence, FISA provisions notwithstanding.[8]

On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution “expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens.”[55][56] This non-binding resolution died in the Senate without being brought up for debate or being voted upon.[57]

Because of its highly classified status, little is publicly known about the actual implementation of the NSA domestic electronic surveillance program. Mark Klein, a retired AT&T communications technician, submitted an affidavit including limited technical details known to him personally in support of a class-action lawsuit filed by the Electronic Frontier Foundation in federal district court in San Francisco in January 2006 on behalf of AT&T customers who alleged that they had been damaged by the telecommunications corporation’s cooperation with the NSA. The lawsuit is called Hepting v. AT&T.[60][61]

A January 16, 2004 statement by Mr. Klein includes additional technical details regarding the secret 2003 construction of an NSA-operated monitoring facility in Room 641A of 611 Folsom Street in San Francisco, the site of a large SBC phone building, three floors of which are occupied by AT&T.[62][63]

According to Klein’s affidavit, the NSA-equipped room uses equipment built by Narus Corporation to intercept and analyze communications traffic, as well as perform data-mining functions.[64]

In an article appearing in the January/February 2008 issue of the Institute of Electrical and Electronics Engineers journal of Security and Privacy, noted technology experts from academia and the computing industry analyzed potential security risks posed by the NSA program, based on information contained in Klein’s affidavits as well as those of expert witness J. Scott Marcus, a designer of large-scale IP-based data networks, former CTO at GTE Internetworking and at Genuity, and former senior advisor for Internet Technology at the US Federal Communications Commission.[65] They concluded that the likely architecture of the system created serious security risks, including the danger that such a surveillance system could be exploited by unauthorized users, criminally misused by trusted insiders, or abused by government agents.[66]

Journalist Barton Gellman reported in the Washington Post that David Addington who was at that time legal counsel to former Vice President Dick Cheney was the author of the controlling legal and technical documents for the NSA surveillance program, typing the documents on a TEMPEST-shielded computer across from his desk in room 268 of the Eisenhower Executive Office Building and storing them in a vault in his office.[67][68][69]

The NSA surveillance controversy involves legal issues that fall into two broad disciplines: statutory interpretation and Constitutional law. Statutory interpretation is the process of interpreting and applying legislation to the facts of a given case. Constitutional law is the body of law that governs the interpretation of the United States Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States.[70]

However, there are analogies between the NSA Spying Scandal (20012007) and Hewlett-Packard spying scandal (2006)[71] that may ease to predict the court outcomes. HP, in order to find the leak source of its board strategic minutes revealed to press, employed several contractors to investigate the leak issue but without engaging any external legal firm and supervisory stakeholder. Contractors, under supervision of the HP’s internal investigation team, confidentially used false pretense and social security numbers a spying technique namely Pretexting for obtaining phone records of suspicious board members and several journalists. Later on, the HP’s surveillance extended beyond the board of directors leaking issue and became a conspiracy for interest of the probe initiators; through which it was claimed that the informational privacy rights of even innocent employees and directors of the board, who had nothing to do with the board leaks, were violated.

In October 2006, HP’s chairwoman Patricia Dunn and HP’s former chief ethics officer Kevin Hunsaker and several private investigators were charged for criminal cases under California Penal Code such as

All of these charges were dismissed.[72]

18 U.S.C.2511(2)(f) provides in relevant part that “the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in 50 U.S.C.1801(f) … and the intercept of domestic [communications] may be conducted.” The interpretation of this clause is central to the controversy because both sides agree that the NSA program operates outside of the procedural framework provided by FISA. The interpretive conflict arises because other provisions of FISA, including the criminal sanctions subpart 50 U.S.C.1809 include an “unless authorized by statute” provision, raising the issue of statutory ambiguity. The administration’s position is that the AUMF is an authorizing statute which satisfies the FISA criteria.

The U.S. Supreme Court faced a similar issue in Hamdi v. Rumsfeld where the government claimed that the AUMF authorized the President to detain U.S. citizens designated as an enemy combatant despite its lack of specific language to that intent and notwithstanding the provisions of 18 U.S.C.4001(a) which requires that the United States government cannot detain an American citizen except by an act of Congress. In that case, the Court ruled:

[B]ecause we conclude that the Government’s second assertion [“that 4001(a) is satisfied, because Hamdi is being detained “pursuant to an Act of Congress” [the AUMF] is correct, we do not address the first. In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals … and that the AUMF satisfied 4001(a)’s requirement that a detention be “pursuant to an Act of Congress”

In Hamdan v. Rumsfeld however, the court rejected the government’s argument that the AUMF implicitly authorized the President to establish military commissions in violation of the UCMJ. The opinion of the Court held:

Neither of these congressional Acts, [AUMF or ATC] however, expands the President’s authority to convene military commissions. First, while we assume that the AUMF activated the President’s war powers, see Hamdi v. Rumsfeld, 542 U.S. 507 (2004)) (plurality opinion), and that those powers include the authority to convene military commissions in appropriate circumstances, see id., at 518; Quirin, 317 U. S., at 2829; see also Yamashita, 327 U. S., at 11, there is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 (“Repeals by implication are not favored”)

Determining when explicit congressional authorization is and is not required appears by this decision to require a court to first determine whether an implicit authorization would amount to a “repeal by implication” of the governing Act.

The exclusivity clause also raises a separation of powers issue. (See Constitutional law issues below)

The arguments against the legality of the NSA fall into two broad categories, those who argue that FISA raises no Constitutional issues and therefore the NSA program is illegal on its face

Common to both of these views is the argument that the participation of “US persons” as defined in FISA 50 U.S.C.1801 renders the objectional intercepts “domestic” in nature.[73] Those advocating the “no constitutional issue” position, argue that Congress has the authority it needs to legislate in this area under Article I and the Fourth Amendment[74] while those who see a constitutional conflict[75] acknowledge that the existing delineation between Congressional and Executive authority in this area is not clear[76] but that Congress, in including the exclusivity clause in FISA, meant to carve out a legitimate role for itself in this arena.

The administration holds that an exception to the normal warrant requirements exists when the purpose of the surveillance is to prevent attack from a foreign threat. Such an exception has been upheld at the Circuit Court level when the target was a foreign agent residing abroad,[77][78] a foreign agent residing in the US,[79][80][81][82] and a US citizen abroad.[83] The warrantless exception was struck down when both the target and the threat was deemed domestic.[84] The legality of targeting US persons acting as agents of a foreign power and residing in this country has not been addressed by the US Supreme Court, but has occurred at least once, in the case of Aldrich Ames.[85]

The Administration’s position with regard to statutory interpretation, as outlined in the DOJ whitepaper, is to avoid what it has termed the “difficult Constitutional questions” by

This argument, as outlined in the DOJ whitepaper, is based on the language of the AUMF, specifically, the acknowledgment of the President’s Constitutional authority contained in the preamble; “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States”, and the language in the resolution itself;

[Be it resolved] [t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The administration also adds that the program is legal under Title II of the USA PATRIOT Act entitled Enhanced Surveillance Procedures,[citation needed] although it is not relying upon the domestic law enforcement provisions of the PATRIOT Act for authorization of any of the NSA program activities.[citation needed] The President had said prior to this, that Americans’ civil liberties were being protected and that purely domestic wiretapping was being conducted pursuant to warrants under applicable law, including the Patriot Act.[87]

These arguments must be compared to the language of the FISA itself, which states:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.[88]

Because the law only authorizes the President to bypass the FISA court during the first 15 days of a war declared by Congress (see “Declaration of war”), the administration’s argument rests on the assumption that the AUMF gave the President more power than was understood as absolutely implicit in any Congressional “declaration of war” at the time of the statute’s enactment. However, as a “declaration of war by the Congress” encompasses all military actions so declared, no matter how small, brief or otherwise constrained by Congress, the above citation could be seen as setting not a default or typical level of Presidential wartime authority, but instead a presumptive minimum, which might more often than not be extended (explicitly or implicitly) by Congress’s war declaration.

According to Peter J. Wallison, former White House Counsel to President Ronald Reagan: “It is true, of course, that a president’s failure to report to Congress when he is required to do so by law is a serious matter, but in reality the reporting requirement was a technicality that a President could not be expected to know about.”[89] In regard to this program, a Gang of Eight (eight key members of Congress, thirteen in this case between the 107th and 109th Congressional Sessions) have been kept informed to some degree:

Under the National Security Act of 1947, 501503, codified as 50 USC 413-413b,[90] the President is required to keep Congressional intelligence committees “fully and currently” informed of U.S. intelligence activities, “consistent with … protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters.” For covert actions, from which intelligence gathering activities are specifically excluded in 413b(e)(1), the President is specifically permitted to limit reporting to the so-called “Gang of Eight”.[91]

The administration contends that with regard to the NSA surveillance program, the administration fulfilled its notification obligations by briefing key members of Congress (thirteen individuals in this case between the 107th and 109th Congressional sessions) have been briefed on the NSA program more than a dozen times[citation needed] but they were forbidden from sharing information about the program with other members or staff.[citation needed]

On January 18, 2006 the Congressional Research Service released a report, “Statutory Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert Actions”.[92][93] That report found that “[b]ased upon publicly reported descriptions of the program, the NSA surveillance program would appear to fall more closely under the definition of an intelligence collection program, rather than qualify as a covert action program as defined by statute”, and, therefore, concluded there was no specific statutory basis for limiting briefings on the terrorist surveillance program to the Gang of Eight.[94] However, the report goes on to note in its concluding paragraph that limited disclosure is also permitted under the statute “in order to protect intelligence sources and methods”.[95]

Thus, although the specific statutory “Gang of Eight” notification procedure for covert action would not seem to apply to the NSA program, it is not clear if a limited notification procedure intended to protect sources and methods is expressly prohibited. Additionally, should the sources and methods exception apply it will require a factual determination as to whether it should apply to disclosure of the program itself or only to specific sensitive aspects.

The constitutional debate surrounding executive authorization of warrantless surveillance is principally about separation of powers (“checks and balances”). If, as discussed above, no “fair reading” of FISA can be found in satisfaction of the canon of avoidance, these issues will have to be decided at the appellate level, by United States courts of appeals. It should be noted that in such a separation of powers dispute, the burden of proof is placed upon the Congress to establish its supremacy in the matter: the Executive branch enjoys the presumption of authority until an Appellate Court rules against it.[citation needed]

Article I vests Congress with the sole authority “To make Rules for the Government and Regulation of the land and naval Forces” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The U.S. Supreme Court has used the “necessary and proper” clause of Article I to affirm broad Congressional authority to legislate as it sees fit in the domestic arena[citation needed] but has limited its application in the arena of foreign affairs. In the landmark Curtiss-Wright decision, Justice Sutherland writes in his opinion of the Court:

The [“powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs”] are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.

Article II vests the President with power as “Commander in Chief of the Army and Navy of the United States,” and requires that he “shall take Care that the Laws be faithfully executed”.

The U.S. Supreme Court has historically used Article II to justify wide deference to the President in the arena of foreign affairs.[citation needed] Two historical and recent Supreme Court cases define the secret wiretapping by the NSA. Quoting again from the Curtiss-Wright decision:

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relationsa power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.

The extent of the President’s power as Commander-in-Chief has never been fully defined, but two U.S. Supreme Court cases are considered seminal in this area:[96][97]Youngstown Sheet and Tube Co. v. Sawyer and Curtiss-Wright.

In addition, two relatively new cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, have clarified, and in the case of Hamdan limited, the scope of executive power to detain and try suspected terrorists as enemy combatants.

In Hamdan, the Court’s opinion in footnote 23, rejected the notion that Congress is impotent to regulate the exercise of executive war powers:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

Whether “proper exercise” of Congressional war powers includes authority to regulate the gathering of foreign intelligence, which in other rulings[citation needed] has been recognized as “fundamentally incident to the waging of war”, is a historical point of contention between the Executive and Legislative branches.[8][98]

As noted in “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information”, published by The Congressional Research Service:

A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.

The same report makes clear the Congressional view that intelligence gathered within the U.S. and where “one party is a U.S. person” qualifies as domestic in nature and as such completely within their purview to regulate, and further that Congress may “tailor the President’s use of an inherent constitutional power”:

The passage of FISA and the inclusion of such exclusivity language reflects Congress’s view of its authority to cabin the President’s use of any inherent constitutional authority with respect to warrantless electronic surveillance to gather foreign intelligence.

The Senate Judiciary Committee articulated its view with respect to congressional power to tailor the President’s use of an inherent constitutional power:

The Fourth Amendment to the United States Constitution is part of the Bill of Rights and helps guard against “unreasonable” searches and seizures by agents of the government. It is solely a right of the people that neither the Executive nor Legislative branch can lawfully abrogate, not even if acting in concert: no statute can make an unreasonable search reasonable, nor a reasonable search unreasonable.

The term “unreasonable” is deliberately imprecise but connotes the sense that there is a rational basis for the search and that it is not an excessive imposition upon the individual given the motivation for and circumstances of the search, and is in accordance with customary societal norms. It is conceived that a judge will be sufficiently distanced from the authorities seeking a warrant that they can render an impartial decision unaffected by any prejudices or improper motivations they (or the legislators who enacted a law they are seeking to enforce) may harbor.

An individual who believes their Fourth Amendment rights have been violated by an unreasonable search or seizure may file a civil suit for monetary compensation and seek a court-ordered end to a pattern or practice of such unlawful activities by government authorities, although the plaintiff will need to have evidence that such a wiretap is taking place in order to show standing (Amnesty International v. Clapper). Such civil rights violations are sometimes punishable by state or federal law. Evidence obtained in an unlawful search or seizure is generally inadmissible in a criminal trial.

The law countenances searches without warrant as “reasonable” in numerous circumstances, among them (see below): the persons, property, and papers of individuals crossing the border of the United States and those of paroled felons; in prisons, public schools and government offices; and of international mail. Although these are undertaken as a result of statute or Executive order, they should not be seen as deriving their legitimacy from these, rather, the Fourth Amendment explicitly allows reasonable searches, and the government has instituted some of these as public policy.

The Supreme Court held in Katz v. United States (1967), that the monitoring and recording of private conversations within the United States constitutes a “search” for Fourth Amendment purposes, and therefore the government must generally obtain a warrant before undertaking such domestic recordings.

The Supreme Court has also held in Smith v Maryland (1979) that citizens have no Fourth Amendment expectation of privacy in the business records (sometimes termed metadata) of their communications. This means that the court can subpoena data such as the numbers that an individual has phoned, when and, to a limited degree, where (subject to Jones v. United States) the phone conversation occurred, although a full judicial warrant would be required for the government to acquire or admit audio content from the telephone call. Under Section 215 of the PATRIOT act, the FBI can subpoena some or all such records from a business record holder using a warrant applied for in the Foreign Intelligence Surveillance Court.

The protection of “private conversations” has been held to apply only to conversations where the participants have not only manifested a desire but also a reasonable expectation that their conversation is indeed private and that no other party is listening in. In the absence of such a reasonable expectation, the Fourth Amendment does not apply, and surveillance without warrant does not violate it. Privacy is clearly not a reasonable expectation in communications to persons in the many countries whose governments openly intercept electronic communications, and is of dubious reasonability in countries against which the United States is waging war.

The law also recognizes a distinction between domestic surveillance taking place within U.S. borders and foreign surveillance of non-U.S. persons either in the U.S. or abroad.[99] In United States v. Verdugo-Urquidez, the Supreme Court reaffirmed the principle that the Constitution does not extend protection to non-U.S. persons located outside of the United States, so no warrant would be required to engage in even physical searches of non-U.S. citizens abroad.

The U.S. Supreme Court has never ruled on the constitutionality of warrantless searches targeting foreign powers or their agents within the US. There have been, however, a number of Circuit Court rulings upholding the constitutionality of such warrantless searches.[100] In United States v. Bin Laden, the Second Circuit noted that “no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.”[101] Assistant Attorney General William Moschella in his written response to questions from the House Judiciary Committee explained that in the administration’s view, this unanimity of pre-FISA Circuit Court decisions vindicates their argument that warrantless foreign-intelligence surveillance authority existed prior to FISA and since, as these ruling indicate, that authority derives from the Executive’s inherent Article II powers, they may not be encroached by statute.[102] In 2002, the United States Foreign Intelligence Surveillance Court of Review (Court of Review) met for the first time and issued an opinion (In re: Sealed Case No. 02-001) which seems to echo that view. They too noted all the Federal courts of appeal having looked at the issue had concluded that there was constitutional power for the president to conduct warrantless foreign intelligence surveillance. Furthermore, based on these rulings it “took for granted such power exits” and ruled that under this presumption, “FISA could not encroach on the president’s constitutional power.” Professor Orin Kerr argues in rebuttal that the part of In re: Sealed Case No. 02-001 that dealt with FISA (rather than the Fourth Amendment) was nonbinding obiter dicta and that the argument does not restrict Congress’s power to regulate the executive in general.[103]

Harold Koh, dean of Yale Law School, Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate, and former Counsel to the President John Dean, contend that FISA clearly makes the wiretapping illegal and subject to the criminal penalties of FISA,[104] (in seeming disagreement with the FISA Court of Review finding above) and that the president’s own admissions already constitute sufficient evidence of a violation of the Fourth Amendment, without requiring further factual evidence. Professor John C. Eastman, in his analysis, prepared at the behest of the House Judiciary Committee, comparing the CRS and DOJ reports, concluded instead that under the Constitution and ratified by both historical and Supreme Court precedent, “the President clearly has the authority to conduct surveillance of enemy communications in time of war and of the communications to and from those he reasonably believes are affiliated with our enemies. Moreover, it should go without saying that such activities are a fundamental incident of war.”[105]

Orin S. Kerr, associate professor of law at The George Washington University Law School[106] and a leading scholar in the subjects of computer crime law and internet surveillance,[107] points to an analogy between the NSA intercepts and searches allowed by the Fourth Amendment under the border search exception.

The border search exception permits searches at the border of the United States “or its functional equivalent.” (United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985)). The idea here is that the United States as a sovereign nation has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.)…At the same time, I don’t know of a rationale in the case law for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the “functional equivalent of the border,” much like airports are the functional equivalent of the border in the case of international airline travel…the most persuasive case on point: United States v. Ramsey, [held] that the border search exception applies to all international postal mail, permitting all international postal mail to be searched.

Evidence gathered without warrant may raise significant Fourth Amendment issues which could preclude its use in a criminal trial. As a general rule of law, evidence obtained improperly without lawful authority, may not be used in a criminal prosecution.[citation needed] The U.S. Supreme Court has never addressed the constitutionality of warrantless searches (which has been broadly defined by the court to include surveillance) targeting foreign powers or their agents, the admissibility of such evidence in a criminal trial nor whether it is permissible to obtain or use evidence gathered without warrant against US persons acting as agents of a foreign power.[citation needed]

The National Security Act of 1947[108] requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a) (5) of that act states: “A finding may not authorize any action that would violate the Constitution or any statute of the United States.”

On August 17, 2006, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan ruled in ACLU v. NSA that the Terrorist Surveillance Program was unconstitutional under the Fourth and First Amendments and enjoined the NSA from using the program to conduct electronic surveillance “in contravention of [FISA or Title III]”.[36] In her ruling,[109] she wrote:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has indisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Even some legal experts who agreed with the outcome have criticized the reasoning set forth in the opinion.[110] Others have argued that the perceived flaws in the opinion in fact reflect the Department of Justice’s refusal to argue the legal merits of the program (they chose to focus solely on arguments about standing and state secrets grounds).[111]

On October 4, 2006, a panel of the United States Court of Appeals for the Sixth Circuit unanimously ruled that the government can continue the program while it appeals the lower court decision.[112][113]

On July 6, 2007 the Sixth Circuit dismissed the case, finding that the plaintiffs had no standing.

The Court found that:[114]

[T]he plaintiffs do not and because of the State Secrets Doctrine cannot produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants. Instead, they assert a mere belief, which they contend is reasonable and which they label a well founded belief,…

Implicit in each of the plaintiffs’ alleged injuries is the underlying possibility which the plaintiffs label a “well founded belief” and seek to treat as a probability or even a certainty that the NSA is presently intercepting, or will eventually intercept, communications to or from one or more of these particular plaintiffs, and that such interception would be detrimental to the plaintiffs’ clients, sources, or overseas contacts. This is the premise upon which the plaintiffs’ entire theory is built.

But even though the plaintiffs’ beliefs based on their superior knowledge of their contacts’ activities may be reasonable, the alternative possibility remains that the NSA might not be intercepting, and might never actually intercept, any communication by any of the plaintiffs named in this lawsuit.

Corporate secrecy is also an issue. Wired reported: In a letter to the EFF, AT&T objected to the filing of the documents in any manner, saying that they contain sensitive trade secrets and could be “used to ‘hack’ into the AT&T network, compromising its integrity.”[115] However, Chief Judge Vaughn Walker stated, during the September 12, 2008 hearing in the class-action lawsuit filed by the EFF, that the Klein evidence could be presented in court, effectively ruling that AT&T’s trade secret and security claims were unfounded.

The majority of legal arguments supporting the NSA warrantless surveillance program have been based on the War Powers Resolution. There have not been any other noteworthy types of supporting legal arguments. The War Powers Resolution has been questioned as unconstitutional since its creation, and its adaptation to the NSA warrantless surveillance program has been questionable.

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Eugenics in the United States – Wikipedia, the free encyclopedia

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Sep 072015

Early proponents

The American eugenics movement was rooted in the biological determinist ideas of Sir Francis Galton, which originated in the 1880s. Galton studied the upper classes of Britain, and arrived at the conclusion that their social positions were due to a superior genetic makeup.[8] Early proponents of eugenics believed that, through selective breeding, the human species should direct its own evolution. They tended to believe in the genetic superiority of Nordic, Germanic and Anglo-Saxon peoples; supported strict immigration and anti-miscegenation laws; and supported the forcible sterilization of the poor, disabled and “immoral”.[9] Eugenics was also supported by African Americans intellectuals such as W. E. B. Du Bois, Thomas Wyatt Turner, and many academics at Tuskegee University, Howard University, and Hampton University; however they believed the best blacks were as good as the best whites and “The Talented Tenth” of all races should mix.[10] W. E. B. Du Bois believed “only fit blacks should procreate to eradicate the race’s heritage of moral iniquity.”[10][11]

The American eugenics movement received extensive funding from various corporate foundations including the Carnegie Institution, Rockefeller Foundation, and the Harriman railroad fortune.[6] In 1906 J.H. Kellogg provided funding to help found the Race Betterment Foundation in Battle Creek, Michigan.[8] The Eugenics Record Office (ERO) was founded in Cold Spring Harbor, New York in 1911 by the renowned biologist Charles B. Davenport, using money from both the Harriman railroad fortune and the Carnegie Institution. As late as the 1920s, the ERO was one of the leading organizations in the American eugenics movement.[8][12] In years to come, the ERO collected a mass of family pedigrees and concluded that those who were unfit came from economically and socially poor backgrounds. Eugenicists such as Davenport, the psychologist Henry H. Goddard, Harry H. Laughlin, and the conservationist Madison Grant (all well respected in their time) began to lobby for various solutions to the problem of the “unfit”. Davenport favored immigration restriction and sterilization as primary methods; Goddard favored segregation in his The Kallikak Family; Grant favored all of the above and more, even entertaining the idea of extermination.[13] The Eugenics Record Office later became the Cold Spring Harbor Laboratory.

Eugenics was widely accepted in the U.S. academic community.[6] By 1928 there were 376 separate university courses in some of the United States’ leading schools, enrolling more than 20,000 students, which included eugenics in the curriculum.[14] It did, however, have scientific detractors (notably, Thomas Hunt Morgan, one of the few Mendelians to explicitly criticize eugenics), though most of these focused more on what they considered the crude methodology of eugenicists, and the characterization of almost every human characteristic as being hereditary, rather than the idea of eugenics itself.[15]

By 1910, there was a large and dynamic network of scientists, reformers and professionals engaged in national eugenics projects and actively promoting eugenic legislation. The American Breeder’s Association was the first eugenic body in the U.S., established in 1906 under the direction of biologist Charles B. Davenport. The ABA was formed specifically to “investigate and report on heredity in the human race, and emphasize the value of superior blood and the menace to society of inferior blood.” Membership included Alexander Graham Bell, Stanford president David Starr Jordan and Luther Burbank.[16][17] The American Association for the Study and Prevention of Infant Mortality was one of the first organizations to begin investigating infant mortality rates in terms of eugenics.[18] They promoted government intervention in attempts to promote the health of future citizens.[19][verification needed]

Several feminist reformers advocated an agenda of eugenic legal reform. The National Federation of Women’s Clubs, the Woman’s Christian Temperance Union, and the National League of Women Voters were among the variety of state and local feminist organization that at some point lobbied for eugenic reforms.[20]

One of the most prominent feminists to champion the eugenic agenda was Margaret Sanger, the leader of the American birth control movement. Margaret Sanger saw birth control as a means to prevent unwanted children from being born into a disadvantaged life, and incorporated the language of eugenics to advance the movement.[21][22] Sanger also sought to discourage the reproduction of persons who, it was believed, would pass on mental disease or serious physical defect. She advocated sterilization in cases where the subject was unable to use birth control.[21] Unlike other eugenicists, she rejected euthanasia.[23] For Sanger, it was individual women and not the state who should determine whether or not to have a child.[24][25]

In the Deep South, women’s associations played an important role in rallying support for eugenic legal reform. Eugenicists recognized the political and social influence of southern clubwomen in their communities, and used them to help implement eugenics across the region.[26] Between 1915 and 1920, federated women’s clubs in every state of the Deep South had a critical role in establishing public eugenic institutions that were segregated by sex.[27] For example, the Legislative Committee of the Florida State Federation of Women’s Clubs successfully lobbied to institute a eugenic institution for the mentally retarded that was segregated by sex.[28] Their aim was to separate mentally retarded men and women to prevent them from breeding more “feebleminded” individuals.

Public acceptance in the U.S. was the reason eugenic legislation was passed. Almost 19 million people attended the PanamaPacific International Exposition in San Francisco, open for 10 months from February 20 to December 4, 1915.[29][30][31] The PPIE was a fair devoted to extolling the virtues of a rapidly progressing nation, featuring new developments in science, agriculture, manufacturing and technology. A subject that received a large amount of time and space was that of the developments concerning health and disease, particularly the areas of tropical medicine and race betterment (tropical medicine being the combined study of bacteriology, parasitology and entomology while racial betterment being the promotion of eugenic studies). Having these areas so closely intertwined, it seemed that they were both categorized in the main theme of the fair, the advancement of civilization. Thus in the public eye, the seemingly contradictory[clarification needed] areas of study were both represented under progressive banners of improvement and were made to seem like plausible courses of action to better American society.[32][verification needed]

Beginning with Connecticut in 1896, many states enacted marriage laws with eugenic criteria, prohibiting anyone who was “epileptic, imbecile or feeble-minded”[33] from marrying.[citation needed]

The first state to introduce a compulsory sterilization bill was Michigan, in 1897 but the proposed law failed to garner enough votes by legislators to be adopted. Eight years later Pennsylvania’s state legislators passed a sterilization bill that was vetoed by the governor. Indiana became the first state to enact sterilization legislation in 1907,[34] followed closely by Washington and California in 1909. Sterilization rates across the country were relatively low (California being the sole exception) until the 1927 Supreme Court case Buck v. Bell which legitimized the forced sterilization of patients at a Virginia home for the mentally retarded. The number of sterilizations performed per year increased until another Supreme Court case, Skinner v. Oklahoma, 1942, complicated the legal situation by ruling against sterilization of criminals if the equal protection clause of the constitution was violated. That is, if sterilization was to be performed, then it could not exempt white-collar criminals.[35] The state of California was at the vanguard of the American eugenics movement, performing about 20,000 sterilizations or one third of the 60,000 nationwide from 1909 up until the 1960s.[36]

While California had the highest number of sterilizations, North Carolina’s eugenics program which operated from 1933 to 1977, was the most aggressive of the 32 states that had eugenics programs.[37] An IQ of 70 or lower meant sterilization was appropriate in North Carolina.[38] The North Carolina Eugenics Board almost always approved proposals brought before them by local welfare boards.[38] Of all states, only North Carolina gave social workers the power to designate people for sterilization.[37] “Here, at last, was a method of preventing unwanted pregnancies by an acceptable, practical, and inexpensive method,” wrote Wallace Kuralt in the March 1967 journal of the N.C. Board of Public Welfare. “The poor readily adopted the new techniques for birth control.”[38]

The Immigration Restriction League was the first American entity associated officially with eugenics. Founded in 1894 by three recent Harvard University graduates, the League sought to bar what it considered inferior races from entering America and diluting what it saw as the superior American racial stock (upper class Northerners of Anglo-Saxon heritage). They felt that social and sexual involvement with these less-evolved and less-civilized races would pose a biological threat to the American population. The League lobbied for a literacy test for immigrants, based on the belief that literacy rates were low among “inferior races”. Literacy test bills were vetoed by Presidents in 1897, 1913 and 1915; eventually, President Wilson’s second veto was overruled by Congress in 1917. Membership in the League included: A. Lawrence Lowell, president of Harvard, William DeWitt Hyde, president of Bowdoin College, James T. Young, director of Wharton School and David Starr Jordan, president of Stanford University.[39]

The League allied themselves with the American Breeder’s Association to gain influence and further its goals and in 1909 established a Committee on Eugenics chaired by David Starr Jordan with members Charles Davenport, Alexander Graham Bell, Vernon Kellogg, Luther Burbank, William Ernest Castle, Adolf Meyer, H. J. Webber and Friedrich Woods. The ABA’s immigration legislation committee, formed in 1911 and headed by League’s founder Prescott F. Hall, formalized the committee’s already strong relationship with the Immigration Restriction League. They also founded the Eugenics Record Office, which was headed by Harry H. Laughlin.[40] In their mission statement, they wrote:

Society must protect itself; as it claims the right to deprive the murderer of his life so it may also annihilate the hideous serpent of hopelessly vicious protoplasm. Here is where appropriate legislation will aid in eugenics and creating a healthier, saner society in the future.”[40]

Money from the Harriman railroad fortune was also given to local charities, in order to find immigrants from specific ethnic groups and deport, confine, or forcibly sterilize them.[6]

With the passage of the Immigration Act of 1924, eugenicists for the first time played an important role in the Congressional debate as expert advisers on the threat of “inferior stock” from eastern and southern Europe.[41][verification needed] The new act, inspired by the eugenic belief in the racial superiority of “old stock” white Americans as members of the “Nordic race” (a form of white supremacy), strengthened the position of existing laws prohibiting race-mixing.[42] Eugenic considerations also lay behind the adoption of incest laws in much of the U.S. and were used to justify many anti-miscegenation laws.[43]

Stephen Jay Gould asserted that restrictions on immigration passed in the United States during the 1920s (and overhauled in 1965 with the Immigration and Nationality Act) were motivated by the goals of eugenics. During the early 20th century, the United States and Canada began to receive far higher numbers of Southern and Eastern European immigrants. Influential eugenicists like Lothrop Stoddard and Harry Laughlin (who was appointed as an expert witness for the House Committee on Immigration and Naturalization in 1920) presented arguments they would pollute the national gene pool if their numbers went unrestricted.[44][45] It has been argued that this stirred both Canada and the United States into passing laws creating a hierarchy of nationalities, rating them from the most desirable Anglo-Saxon and Nordic peoples to the Chinese and Japanese immigrants, who were almost completely banned from entering the country.[42][46]

Both class and race factored into eugenic definitions of “fit” and “unfit.” By using intelligence testing, American eugenicists asserted that social mobility was indicative of one’s genetic fitness.[47] This reaffirmed the existing class and racial hierarchies and explained why the upper-to-middle class was predominately white. Middle-to-upper class status was a marker of “superior strains.”[28] In contrast, eugenicists believed poverty to be a characteristic of genetic inferiority, which meant that that those deemed “unfit” were predominately of the lower classes.[28]

Because class status designated some more fit than others, eugenicists treated upper and lower class women differently. Positive eugenicists, who promoted procreation among the fittest in society, encouraged middle class women to bear more children. Between 1900 and 1960, Eugenicists appealed to middle class white women to become more “family minded,” and to help better the race.[48] To this end, eugenicists often denied middle and upper class women sterilization and birth control.[49]

Since poverty was associated with prostitution and “mental idiocy,” women of the lower classes were the first to be deemed “unfit” and “promiscuous.”[28] These women, who were predominately immigrants or women of color[citation needed], were discouraged from bearing children, and were encouraged to use birth control.

In 1907, Indiana passed the first eugenics-based compulsory sterilization law in the world. Thirty U.S. states would soon follow their lead.[50][51] Although the law was overturned by the Indiana Supreme Court in 1921,[52] the U.S. Supreme Court, in Buck v. Bell, upheld the constitutionality of the Virginia Sterilization Act of 1924, allowing for the compulsory sterilization of patients of state mental institutions in 1927.[53]

Some states sterilized “imbeciles” for much of the 20th century. Although compulsory sterilization is now considered an abuse of human rights, Buck v. Bell was never overturned, and Virginia did not repeal its sterilization law until 1974.[54] The most significant era of eugenic sterilization was between 1907 and 1963, when over 64,000 individuals were forcibly sterilized under eugenic legislation in the United States.[55] Beginning around 1930, there was a steady increase in the percentage of women sterilized, and in a few states only young women were sterilized. From 1930 to the 1960s, sterilizations were performed on many more institutionalized women than men.[28] By 1961, 61 percent of the 62,162 total eugenic sterilizations in the United States were performed on women.[28] A favorable report on the results of sterilization in California, the state with the most sterilizations by far, was published in book form by the biologist Paul Popenoe and was widely cited by the Nazi government as evidence that wide-reaching sterilization programs were feasible and humane.[56][57]

Men and women were compulsorily sterilized for different reasons. Men were sterilized to treat their aggression and to eliminate their criminal behavior, while women were sterilized to control the results of their sexuality.[28] Since women bore children, eugenicists held women more accountable than men for the reproduction of the less “desirable” members of society.[28] Eugenicists therefore predominately targeted women in their efforts to regulate the birth rate, to “protect” white racial health, and weed out the “defectives” of society.[28]

A 1937 Fortune magazine poll found that 2/3 of respondents supported eugenic sterilization of “mental defectives”, 63% supported sterilization of criminals, and only 15% opposed both.[58]

In the 1970s, several activists and women’s rights groups discovered several physicians to be performing coerced sterilizations of specific ethnic groups of society. All were abuses of poor, nonwhite, or mentally retarded women, while no abuses against white or middle-class women were recorded.[59] Although the sterilizations were not explicitly motivated by eugenics, the sterilizations were similar to the eugenics movement[according to whom?] because they were done without the patients’ consent.

For example, in 1972, United States Senate committee testimony brought to light that at least 2,000 involuntary sterilizations had been performed on poor black women without their consent or knowledge. An investigation revealed that the surgeries were all performed in the South, and were all performed on black welfare mothers with multiple children. Testimony revealed that many of these women were threatened with an end to their welfare benefits until they consented to sterilization.[60] These surgeries were instances of sterilization abuse, a term applied to any sterilization performed without the consent or knowledge of the recipient, or in which the recipient is pressured into accepting the surgery. Because the funds used to carry out the surgeries came from the U.S. Office of Economic Opportunity, the sterilization abuse raised older suspicions, especially amongst the black community, that “federal programs were underwriting eugenicists who wanted to impose their views about population quality on minorities and poor women.”[28]

Native American women were also victims of sterilization abuse up into the 1970s.[61] The organization WARN (Women of All Red Nations) publicized that Native American women were threatened that, if they had more children, they would be denied welfare benefits. The Indian Health Service also repeatedly refused to deliver Native American babies until their mothers, in labor, consented to sterilization. Many Native American women unknowingly gave consent, since directions were not given in their native language. According to the General Accounting Office, an estimate of 3,406 Indian women were sterilized.[61] The General Accounting Office stated that the Indian Health Service had not followed the necessary regulations, and that the “informed consent forms did not adhere to the standards set by the United States Department of Health, Education, and Welfare (HEW).”[62]

One of the methods that was commonly suggested to get rid of “inferior” populations was euthanasia. A 1911 Carnegie Institute report mentioned euthanasia as one of its recommended “solutions” to the problem of cleansing society of unfit genetic attributes. The most commonly suggested method was to set up local gas chambers. However, many in the eugenics movement did not believe that Americans were ready to implement a large-scale euthanasia program, so many doctors had to find clever ways of subtly implementing eugenic euthanasia in various medical institutions. For example, a mental institution in Lincoln, Illinois fed its incoming patients milk infected with tuberculosis (reasoning that genetically fit individuals would be resistant), resulting in 30-40% annual death rates. Other doctors practiced euthanasia through various forms of lethal neglect.[63]

In the 1930s, there was a wave of portrayals of eugenic “mercy killings” in American film, newspapers, and magazines. In 1931, the Illinois Homeopathic Medicine Association began lobbying for the right to euthanize “imbeciles” and other defectives. The Euthanasia Society of America was founded in 1938.[64]

Overall, however, euthanasia was marginalized in the U.S., motivating people to turn to forced segregation and sterilization programs as a means for keeping the “unfit” from reproducing.[65]

Mary deGormo, a former classroom teacher was the first person to combine ideas about health and intelligence standards with competitions at state fairs, in the form of “better baby” contests. She developed the first such contest, the “Scientific Baby Contest” for the Louisiana State Fair in Shreveport, in 1908. She saw these contests as a contribution to the “social efficiency” movement, which was advocating for the standardization of all aspects of American life as a means of increasing efficiency.[18] deGarmo was assisted by the pediatrician Dr. Jacob Bodenheimer, who helped her develop grading sheets for contestants, which combined physical measurements with standardized measurements of intelligence.[66] Scoring was based on a deduction system, in that every child started at 1000 points and then was docked points for having measurements that were below a designated average. The child with the most points (and the least defections) was ideal.[67][verification needed]

The topic of standardization through scientific judgment was a topic that was very serious in the eyes of the scientific community, but has often been downplayed as just a popular fad or trend. Nevertheless, a lot of time, effort, and money were put into these contests and their scientific backing, which would influence cultural ideas as well as local and state government practices.[68][verification needed]

The National Association for the Advancement of Colored People promoted eugenics by hosting “Better Baby” contests and the proceeds would go to its anti-lynching campaign.[10]

First appearing in 1920 at the Kansas Free Fair, Fitter Family competitions, continued all the way until WWII. Mary T. Watts and Florence Brown Sherbon, both initiators of the Better Baby Contests in Iowa, took the idea of positive eugenics for babies and combined it with a determinist concept of biology to come up with fitter family competitions.[69]

There were several different categories that families were judged in: Size of the family, overall attractiveness, and health of the family, all of which helped to determine the likelihood of having healthy children. These competitions were simply a continuation of the Better Baby contests that promoted certain physical and mental qualities.[70] At the time, it was believed that certain behavioral qualities were inherited from your parents. This led to the addition of several judging categories including: generosity, self-sacrificing, and quality of familial bonds. Additionally, there were negative features that were judged: selfishness, jealousy, suspiciousness, high temperedness, and cruelty. Feeblemindedness, alcoholism, and paralysis were few among other traits that were included as physical traits to be judged when looking at family lineage.[29]

Doctors and specialists from the community would offer their time to judge these competitions, which were originally sponsored by the Red Cross.[29] The winners of these competitions were given a Bronze Medal as well as champion cups called “Capper Medals.” The cups were named after then Governor and Senator, Arthur Capper and he would present them to “Grade A individuals”.[71]

The perks of entering into the contests were that the competitions provided a way for families to get a free health check up by a doctor as well as some of the pride and prestige that came from winning the competitions.[29]

By 1925 the Eugenics Records Office was distributing standardized forms for judging eugenically fit families, which were used in contests in several U.S. states.[72]

After the eugenics movement was well established in the United States, it spread to Germany. California eugenicists began producing literature promoting eugenics and sterilization and sending it overseas to German scientists and medical professionals.[65] By 1933, California had subjected more people to forceful sterilization than all other U.S. states combined. The forced sterilization program engineered by the Nazis was partly inspired by California’s.[7]

The Rockefeller Foundation helped develop and fund various German eugenics programs,[73] including the one that Josef Mengele worked in before he went to Auschwitz.[6][74]

Upon returning from Germany in 1934, where more than 5,000 people per month were being forcibly sterilized, the California eugenics leader C. M. Goethe bragged to a colleague:

“You will be interested to know that your work has played a powerful part in shaping the opinions of the group of intellectuals who are behind Hitler in this epoch-making program. Everywhere I sensed that their opinions have been tremendously stimulated by American thought . . . I want you, my dear friend, to carry this thought with you for the rest of your life, that you have really jolted into action a great government of 60 million people.”[75]

Eugenics researcher Harry H. Laughlin often bragged that his Model Eugenic Sterilization laws had been implemented in the 1935 Nuremberg racial hygiene laws.[76] In 1936, Laughlin was invited to an award ceremony at Heidelberg University in Germany (scheduled on the anniversary of Hitler’s 1934 purge of Jews from the Heidelberg faculty), to receive an honorary doctorate for his work on the “science of racial cleansing”. Due to financial limitations, Laughlin was unable to attend the ceremony and had to pick it up from the Rockefeller Institute. Afterwards, he proudly shared the award with his colleagues, remarking that he felt that it symbolized the “common understanding of German and American scientists of the nature of eugenics.”[77]

After 1945, however, historians began to attempt to portray the US eugenics movement as distinct and distant from Nazi eugenics.[78]Jon Entine wrote that eugenics simply means “good genes” and using it as synonym for genocide is an “all-too-common distortion of the social history of genetics policy in the United States.” According to Entine, eugenics developed out of the Progressive Era and not “Hitler’s twisted Final Solution.”[79]

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Sep 022015

Eugenics was a movement which tried to eliminate “dangerous human pests” and “the rising tide of imbeciles” through what has been euphemistically called “selective breeding”. What this meant, in actual practice, was forced sterilization of American immigrants and minorities (particularly in California).[1]

The theory of evolution suggests that humans are merely evolving animals. The claimed biological struggle for survival that brought humans here is continuing. Man’s long-term survival is, according to evolution, a biological survival of the fittest. Evolution theory teaches that there must be a biological struggle for survival among various human races and groups.

Charles Darwin declared in The Descent of Man:[2]

Darwin was not the first to claim racial superiority. But he was the first to teach that some races of man “will almost certainly exterminate, and replace” other races of man. His followers developed a new intellectual field called “eugenics” for this mythical biological struggle.

In fact, the term “eugenics” was coined by Darwin’s cousin, Francis Galton.[3]

Defenders of Darwin, and Darwinism, often try to argue that Darwin, and Darwinism, have no logical connection to eugenics at all. However, in a 1914 speech, Charles Darwin’s son, Francis Darwin, wrote: “In the first edition of The Descent of Man, 1874, [my father] distinctly gives his adherence to the eugenic idea by his assertion that many might by selection do something for the moral and physical qualities of the race.”[4] He based his ideas on his cousin’s work.

Francis Darwin’s clear statement that his father endorsed Galton’s conception of eugenics is important, because many people try to distance Darwin from the taint of eugenics by pointing out that Darwin himself never advocated for it by name. But Galton coined the word after Darwin’s death, so naturally he wouldn’t have used the word ‘eugenics.’ Darwin’s son can be expected to have understood his father’s theory well enough to know whether or not his father’s book, “The Descent of Man”, ‘gave adherence to the eugenic idea.’

The word “eugenics” is based on Greek roots meaning “well born.” The Merriam-Webster dictionary provides 1883 as the date of origin for the term. Later, Darwin’s son, Leonard, served as the president of the First Congress of Eugenics in 1912 in London.

The encyclopedia describes eugenics as now being “in disrepute,”[5] although Professor Peter Singer of Princeton University has sought to remove the stigma from it. Evolutionist and atheist Richard Dawkins has stated in one letter his wish that it no longer be banned from polite discussion.[6]

The Spartans in ancient Greece practiced a primitive form of eugenics, wherein babies which were judged to be too “weak” or “sickly” would be left to die.

In the early 1900s, many influential officials advocated Darwinism and eugenics. Supreme Court Justice Oliver Wendell Holmes became a strong proponent. So did many others in prominent government and academic positions. Members of the British Eugenics Society, including the International Planned Parenthood Federation, are listed.[7]

Between 1907 and 1937, 32 American states passed eugenics laws requiring sterilization of citizens deemed to be misfits, such as the mentally infirm. Oliver Wendell Holmes and all but one conservative Democratic Justice upheld such laws in a Supreme Court decision that included Holmes’ offensive statement that “three generations of imbeciles are enough.” Buck v. Bell, 274 U.S. 200, 207 (1927).[8] In fact, the third generation “imbecile” was very bright, but was declared by a eugenics “expert” as “supposed to be a mental defective,” apparently without an examination.

Eugenics was taught as part of the evolution curriculum of many science classes in America in the early 1900s. For example, it was featured in the textbook used in the famous Scopes trial in 1925.

“By 1928, the American Genetics Association boasted that there were 376 college courses devoted exclusively to eugenics. High-school biology textbooks followed suit by the mid-1930s, with most containing material favorable to the idea of eugenical control of reproduction. It would thus have been difficult to be an even moderately educated reader in the 1920s or 1930s and not have known, at least in general terms, about the claims of eugenics.”[9]

Important remnants of the evolution-eugenics approach exist today, in part because many of Justice Holmes’ opinions are still controlling law. The very first quote in the infamous Roe v. Wade abortion decision is an unprincipled statement of Justice Holmes in a 1905 opinion. Indeed, Holmes once wrote favorably in a letter to a future Supreme Court Justice about “restricting propagation by the undesirables and putting to death infants that didn’t pass the examination.[10]

Existing laws requiring students to receive controversial vaccines are based on a eugenics-era decision granting the State the power to forcibly vaccinate residents. [11] That decision, in fact, was the cited precedent for Justice Holmes’ offensive “imbeciles” holding quoted above.

For the same reason that evolution teaching led to eugenics, evolution teaching today encourages acceptance of abortion and euthanasia. Under evolution theory, after all, we are merely animals fighting for biological survival.

German Darwinist Ernst Haeckel promoted evolution by drawing fraudulent pictures of humans embryos, to pretend that their developmental stages imitate an historical evolution of humans from other species.[12]

In 1904, Haeckel reiterated the view of Darwin quoted above: “These lower races are psychologically nearer to the mammals (apes or dogs) than to civilized Europeans; we must, therefore, assign a totally different value to their lives.” [13]

It wasn’t long before intellectuals viewed war as an essential evolutionary process. Vom Heutigen Kriege, a popular book by Geberal Bernhardi, “expounded the thesis that war was a biological necessity and a convenient means of ridding the world of the unfit. These views were not confined to a lunatic fringe, but won wide acceptance especially among journalists, academics and politicians.”[14] In America, Justice Holmes similarly wrote that “I always say that society is founded on the death of men – if you don’t kill the weakest one way you kill them another.”[15]

World War I entailed a brutality unknown in the history of mankind. Gregg Easterbrook, a senior editor of the liberal New Republic magazine, observed that “prior to the Scopes trial [in 1925, William Jennings] Bryan had been on a revival tour of Germany and had been horrified by the signs of incipient Nazism. Before this point, Bryan had been a moderate in the evolution debate; for instance, he had lobbied the Florida legislature not to ban the teaching of Darwin, only to specify that evolution must be taught as a theory rather than a fact. But after hearing the National Socialists talk about the elimination of genetic inferiority, [historian Gary] Wills wrote, Bryan came to feel that evolutionary ideas had become dangerous; he began both to oppose and to lampoon them.”

The march of evolution/eugenics continued unabated in Germany. By the 1920s, German textbooks were teaching evolution concepts of heredity and racial hygiene. The Kaiser Wilhelm Institute of Anthropology, Human Heredity, and Eugenics was founded in 1927.

In 1933, Germany passed the Law for the Protection of Heredity Health. Next was the Nazi sterilization law entitled “Eugenics in the service of public welfare.” It required compulsory sterilization for the prevention of progeny with hereditary defects in cases including congenital mental defects, schizophrenia, manic-depressive psychosis and hereditary epilepsy.

The German schools indoctrinated their students. In 1935, a German high-school math textbook included the following problem:[9] ” how much does it cost the state if:

One German student was Josef Mengele, who studied anthropology and paleontology and received his Ph.D. for his thesis entitled “Racial Morphological Research on the Lower Jaw Section of Four Racial Groups.” In 1937, Mengele was recommended for and received a position as a research assistant with the Third Reich Institute for Hereditary, Biology and Racial Purity at the University of Frankfort. He became the “Angel of Death” for directing the operation of gas chambers of the Holocaust and for conducting horrific medical experiments on inmates in pursuit of eugenics.

The liberal American Medical Society provided this summary:[16]

Many genocides have been commited in the name of Eugenics, most notably the Holocaust. Adolf Hitler was a strong believer in eugenics and evolution and believed that Jewish people were closest to apes, followed by Africans, Asians, non-Aryan Europeans, and finally Aryans, who he believed were most evolved.

Pat Milmoe McCarrick and Mary Carrington Coutts, reference librarians for the National Reference Center for Bioethics Literature at Georgetown University, were more succinct: “The Nazi racial hygiene program began with involuntary sterilizations and ended with genocide.” [17]

From The Nazi Connection[18]:

In The Nazi Connection, Stefan Kuhl uncovers the ties between the American eugenics movement and the Nazi program of racial hygiene, showing that many American scientists actively supported Hitler’s policies. After introducing us to the recently resurgent problem of scientific racism, Kuhl carefully recounts the history of the eugenics movement, both in the United States and internationally, demonstrating how widely the idea of sterilization as a genetic control had become accepted by the early twentieth century. From the first, the American eugenicists led the way with radical ideas. Their influence led to sterilization laws in dozens of stateslaws which were studied, and praised, by the German racial hygienists. With the rise of Hitler, the Germans enacted compulsory sterilization laws partly based on the U.S. experience, and American eugenists took pride in their influence on Nazi policies. Kuhl recreates astonishing scenes of American eugenicists travelling to Germany to study the new laws, publishing scholarly articles lionizing the Nazi eugenics program, and proudly comparing personal notes from Hitler thanking them for their books. Even after the outbreak of war, he writes, the American eugenicists frowned upon Hitler’s totalitarian government, but not his sterilization laws. So deep was the failure to recognize the connection between eugenics and Hitler’s genocidal policies, that a prominent liberal Jewish eugenicist who had been forced to flee Germany found it fit to grumble that the Nazis “took over our entire plan of eugenic measures.”

By 1945, when the murderous nature of the Nazi government was made perfectly clear, the American eugenicists sought to downplay the close connections between themselves and the German program. Some of them, in fact, had sought to distance themselves from Hitler even before the war. But Stefan Kuhl’s deeply documented book provides a devastating indictment of the influenceand aidprovided by American scientists for the most comprehensive attempt to enforce racial purity in world history.

Some argue that parents who abort infants with genetic mutation or other disabilities are practicing a form of eugenics.[19] Some doctors and scientists have defended this practice and named it “liberal eugenics” in order to differentiate it from traditional forms of eugenics such as Nazi eugenics.[20] Eugenicists in the United States and elsewhere have been known to employ or advocate abortion as a method of eugenics.

In the 2006 satirical comedy Idiocracy, the entire movie is premised on the idea that the out-breeding of the stupid over the intelligent will lead to a uniformly stupid world run by advertisers, marketers, and anti-intellectualism.

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Sep 022015

We must, if we are to be consistent, and if we’re to have a real pedigree herd, mate the best of our men with the best of our women as often as possible, and the inferior men with the inferior women as seldom as possible, and bring up only the offspring of the best.

Eugenics is the purported study of applying the principles of natural selection and selective breeding through altering human reproduction with the goal of changing the relative frequency of traits in a human population. It was the most dangerous form of biological determinism in modern history.

Eugenics was first developed in the 19th century, a misguided outgrowth of an intellectual milieu influenced by the popularity of early evolutionary theory and which included a spate of works on genetic disorders (many of which are incurable horrors), “scientific racism” and the Social Darwinism of the likes of Herbert Spencer. The term “eugenics” was coined by Francis Galton, a cousin of Charles Darwin, in his 1883 book Inquiries into Human Faculty and Its Development. Galton was responsible for many of the early works of eugenics, including attempts to connect genetics with a most prized trait known as intelligence.[1]

In the United States, it was the biologist Charles Davenport who laid the groundwork for the establishment of eugenics programs.[2] Eugenics gained traction as it was championed in the nascent Progressive Era of the late 19th century into the early 20th century, finding prominent political proponents in presidents Theodore Roosevelt and Woodrow Wilson. However, Calvin Coolidge, Herbert Hoover, and Winston Churchill were also fans of eugenics.[3][4][5]

Some eugenics-based ideas were implemented both in the United States and in Europe. In the U.S., this strongly influenced immigration policy, as in the Johnson Immigration Act of 1924,[wp] which showed a preference for Northern Europeans, as they were believed to be somehow superior to Asians and South and Eastern Europeans.

The first U.S. state to implement eugenics was Indiana, in 1907, in which those housed in penal and mental institutions could be forcibly sterilized.[6] The first European country to implement forced sterilization was Denmark, in 1929.[7]California was the third U.S. state to implement eugenics, in 1909. California would go on to become responsible for a third of all of the forced sterilizations conducted in the United States (~20,000 out of ~60,000).

North Carolina had a eugenics policy from 1929 through 1977. In 2012 a gubernatorial committee proposed a settlement of USD$50,000 to each of the remaining living survivors victims of this policy.[8]

The Supreme Court gave legal backing to forced sterilization using eugenic ideas in the 1927 Buck v. Bell case. As Oliver Wendell Holmes, a eugenics proponent, wrote in the decision, “Three generations of imbeciles is enough.”[9] The Buck v. Bell decision encouraged more states to enact eugenics legislation. 23 states had such legislation prior to Buck v. Bell and 32 after. 18 states never had eugenics legislation.[10]

Israel, of all fucking places, is not immune from this either. Ethiopian Jews were injected with birth control initiatives intended to (at least temporarily) stop them from breeding. How widespread this was is still under investigation.[11]

One way eugenics was popularized was through “Better Baby” contests. These contests were sponsored by hospitals to determine the most “fit” baby, who all happened to be WASPs, naturally. This was spun off into “Fitter Family” contests, which would be held at state fairs, carnivals, and churches to allow entire families to compete.[12][13]

Hitler wrote in Mein Kampf that he approved of the eugenics policy going on in America at the time, to the point where one could say he was inspired by the idea. When he came to power, Nazi Germany saw the most sweeping application of a eugenics program, which is unsurprising, given the Nazis’ maniacal obsession with racial purity, or “racial hygiene” as they called it. The “Law for the Prevention of Hereditarily Diseased Offspring” was implemented within half a year of his rise to power, and resulted in the forced sterilization of up to 400,000 people that were diagnosed with hereditary mental or physical disabilities.[14]

After the outbreak of the war, this policy was carried to another extreme: people bearing hereditary defects were designated as “unfit to live,” and the eugenics program moved from sterilization to extermination. Within the scope of “Action T4,” an estimated 200,000 children and adults were systematically killed in order to avoid having to bear the costs of institutional care.[15] The groups targeted by action T4 were the incurably ill, physically or mentally disabled, emotionally distraught, and elderly people.[16] Achieving racial purity through eugenics on a grand scale can also be seen as an important motivation behind the Holocaust, which saw the murder of millions of “undesirables,” such as Jews, gypsies, Slavs, homosexuals, and the disabled.

Some Christian churches, particularly the Methodists, the Presbyterians, and the Episcopalians, embraced the eugenics movement. The Methodist Church would host Fitter Family contests and Methodist Bishops endorsed one of the first eugenics books circulated to the US churches. The professor of Christian ethics and founder of the Methodist Federation for Social Service, Rev. Harry F. War, writing in Eugenics, the magazine of the American Eugenic Society, said eugenics and Christianity were both compatible because both pursued the challenge of removing the causes that produce the weak.[13]

However, other Christian churches were strongly opposed to eugenics, particularly the Catholic Church and conservative Protestants. Catholics disliked eugenic laws that allowed for sterilization; Protestants viewed eugenics as a threat to a reliance on god to cure social ills.[17]

Because of eugenics’ association with Nazi Germany, a common bullshitting tactic is to declare some historical figure that endorsed eugenics a Nazi or Nazi sympathizer (see, e.g., Margaret Sanger). This is ahistorical as not every eugenics proponent supported the measures of Nazi Germany (or were even around to see it). Indeed, if this were the case, that would make Teddy and Silent Cal Nazis as well.

Galton divided eugenic practice into “positive” and “negative eugenics.” The positive variety consisted of political and economic incentives (such as tax breaks and sex education) for the “fit” to reproduce and the negative type consisted of disincentives such as birth control or forced sterilization. “Dysgenics” refers to the deterioration of the human stock — many eugenicists concentrated on “improvement” of the human race by reversing alleged dysgenic forces. There is also a split between “liberal eugenics” and “authoritarian eugenics.”[18] Liberal eugenics promotes consensual eugenic practice while authoritarian eugenics promotes state-mandated and enforced programs. Proponents personally emphasized different aspects of eugenics, positive, negative, dysgenic forces, etc. Thus, they often disagreed on matters of policy, much less were they all Nazis.

Whilst eugenics is based, in theory, in the perfectly valid science of genetics, its application is always far from scientific. For obvious reasons the room to experiment is limited in the extreme. Furthermore, whereas it is (relatively) easy, for example, to breed cattle for higher milk yield, defining what is meant by a “better” human being is a very difficult question. At this point eugenics stops being scientific and starts being normative and political, and a rather nasty type of politics at that. Eugenics drew heavily from various racist and racialist tracts of the period.

The most obvious flaw with application of eugenics is that its proponents have tended to conflate phenotypical (read: superficial) traits with genotypical traits. Any species that looks fit on the outside may carry recessive traits that don’t exhibit themselves but will be passed on and vice versa. The development of the field of epigenetics,[wp] i.e. heritable environmental factors in genetic expression that occur without change to underlying DNA structures, poses further problems for eugenics.

There is no reason to believe that a selective breeding plan to encourage certain physical traits in humans could not achieve the same results that plant and animal breeders have achieved for centuries (who were without specific knowledge of the genes they were selecting in and out). Odds are that the purebred humans with distinguishing features would be less healthy than the offspring of unconstrained mating would be, for the same reason that kennel-club purebred dogs are often less healthy than mutts. This concept of “purity” is flawed in that it creates many of the same problems as inbreeding a loss of biodiversity can in fact lead to increased susceptibility to a common concentrated weakness.[19] An example of this would be deer populations. A long time ago, natural selection selected for fitter males with antlers, but cue the rise of sport hunting and antlered populations plunged down fast. Another example of concentration is haemophilia, which became the plague of the royal families.

The extreme reductionism of eugenics often crossed into what is now comical territory. Nearly every social behavior, including things such as “pauperism” and the vaguely defined “feeble-mindedness,” could be traced back to a single genetic disorder according to eugenicists. Many works of eugenics recall the similar trend evident in phrenology (indeed, there was some overlap between eugenics and phrenology).[20]

While eugenics gained widespread support in the early 20th century (even within the scientific community) of a number of nations, there was also strong opposition during this period.[21] The biologist Raymond Pearl, for example, once a supporter of the movement, turned against it in the late 1920s.[22] The geneticist Lancelot Hogben argued that eugenics relied on a false dichotomy of “nature vs. nurture” and that it infected science with political value judgments;[23] Hogben was asked by William Beveridge (the then-director of the London School of Economics) to create a “Chair of Social Biology” department on campus, gave him the finger and prevented any of his eugenic ideas from being taken seriously in the formation of the British welfare state.[24]Clarence Darrow famously denounced it as a “cult.”[25] The Carnegie Institute, which initially funded the Eugenics Record Office, withdrew its funding after a review of its research, leading to its closing in 1939 (before the Holocaust even became public record).[26]

Stephen J. Gould was strongly opposed to eugenics. He wrote extensively on the topic, including his treatment on intelligence in The Mismeasure of Man.

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Second Amendment | United States Constitution |

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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.

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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.

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