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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

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

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:
Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

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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NSA warrantless surveillance (200107) – Wikipedia, the …

Eugenics in the United States – Wikipedia, the free encyclopedia

 Eugenics  Comments Off on Eugenics in the United States – Wikipedia, the free encyclopedia
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 |

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

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

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

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

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

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

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

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

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

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

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

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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

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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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Fifth Amendment | Wex Legal Dictionary / Encyclopedia | LII …

Fourth Amendment Body Search Home Search You rights …

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Aug 302015

“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.”

The Fourth Amendment protection against “unreasonable searches and seizures” was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called “writs of assistance” gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Today, the Fourth Amendment has lost its preferred status among our cherished Bill of Rights Protections. In recent decades, growing concerns regarding crime and public safety in America have forced our Courts to balance the privacy rights contained in the Constitution with the ever-expanding needs of law-enforcement officers whose duty it is to investigate and arrest dangerous criminals. The Supreme Court’s rulings in Fourth Amendment cases demonstrate the challenge involved in reconciling these competing ideals.

Ultimately, the Constitution’s prohibition against unreasonable searches and seizures has been trimmed-down in recent years and tailored to suit the needs of modern law enforcement as we wage war against drugs and terrorism. For this reason, it is important for conscientious citizens to be familiar with the lawful parameters of police authority to conduct searches, as well as the legal doctrines by which that authority is limited.

The Fifth Amendment: Self-incrimination Clause

“…No person… shall be compelled in any criminal case to be a witness against himself or be deprived of life liberty or property without due process of law…”

* The Supreme Court has made a new ruling that you must tell the police officer that you will NOT talk to him, you request a lawyer and then keep your mouth shut.

The right against self-incrimination has ancient roots in common law dating back to biblical times. While most provisions of the Fifth Amendment, such as the right to a jury trial and the right against double jeopardy, impose restrictions upon our courthouses, the right against self-incrimination has a profound effect upon the behavior of law-enforcement officers as they investigate crimes. For this reason, the meaning of the self-incrimination clause has remained one of the most controversial issues in criminal procedure since the Supreme Court’s ruling in Miranda v. Arizona.

At this time, it is required by the Supreme Court that police inform all criminal suspects of their right to remain silent prior to interrogation. This right extends from the point of arrest throughout the suspect’s involvement in the criminal justice system. While many in the law-enforcement community feel that this restriction unfairly limits the ability of police and prosecutors to obtain convictions, studies have shown that conviction rates have not changed significantly since the Court first required police to inform those arrested of their right against self-incrimination.

The Sixth Amendment: Right to Counsel Clause

“In all criminal proceedings, the accused shall enjoy the right to have the assistance of counsel for his defense.”

The Sixth Amendment right to counsel is a critical component of the Bill of Rights in that it provides the accused with an advocate who is trained in the legal process and can provide a safeguard against violations of the suspect’s other Bill of Rights protections. Interestingly, it was not until 1963 that the Supreme Court held that states must provide a lawyer for all felony suspects, ending disparities in legal representation based on economic class.

Today, all person charged with a serious crime in the United States enjoy the assistance of a defense attorney regardless of economic status. State-employed public defenders represent clients who cannot afford their own attorneys, and contrary to popular belief, achieve roughly equal outcomes for their clients as do the more expensive privately-hired lawyers.

The Relationship Between Self-incrimination and the Right to Counsel

Many Americans, particularly young people, have become cynical about police practices and our legal system. It is not uncommon to lose hope when arrested or even become angry at the officer or the law he is enforcing. It is an important reality however, that our legal system does provide services for the accused. It cannot be overstated how important it is to wait for legal advice before attempting to discuss a criminal charge with police. The subtleties of the legal process require careful decisions about what to say and how to say it. A lawyer will help you prepare for tough questions and can emphasize your positive qualities to the judge, including qualities you didn’t know you had.

The constitution includes protections for criminal suspects because the legal system is incredibly complex, involving rules and regulations that everyday people would not understand. If you are charged with a crime, take advantage of the protections the constitution gives you. Don’t talk to police about what happened until you have spoken with a lawyer and discussed how to present your side of the story.

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Fourth Amendment Body Search Home Search You rights …

Court Rules Illegal Aliens Have Second Amendment Rights …

 Second Amendment  Comments Off on Court Rules Illegal Aliens Have Second Amendment Rights …
Aug 272015

A recent decision by theU.S. Seventh Circuit Court of Appeals that says illegalalienswhat the left likes to call undocumented immigrantsenjoy a Second Amendment right to bear arms, even if their presence in this nation is criminal.

In the case of a Milwaukee man deported over a single .22 caliber cartridge, a federal appeals court ruled last week that even unlawful immigrants can be part of the public that enjoys a Second Amendment right to keep a gun for self defense.

The U.S. 7th Circuit Court of Appeas said even undocumented immigrants can be part of the people protected by the Bill of Rights, though it upheld the mans conviction on a specific law that prohibits most such persons from having guns.

It is now clear that the Second Amendment right to bear arms is no second-class entitlement, (and) we see no principled way to carve out the Second Amendment and say that the unauthorized (or maybe all noncitizens) are excluded, Judge Diane Wood wrote for a panel that included judges Richard Easterbrook and Joel Flaum.

No language in the Amendment supports such a conclusion, nor, as we have said, does a broader consideration of the Bill of Rights.

Because four other federal circuit courts have come to the opposite conclusion, legal commentators were quick to suggest the issue of whether undocumented immigrants have Second Amendment rights could now be headed for the U.S. Supreme Court.

While rejecting the idea that undocumented immigrants could never have any rights under the Second Amendment, Wood noted that even for citizens, those rights are not unlimited. She found that a federal law tailored to keep guns out of the hands of undocumented immigrants like gun restrictions imposed on felons and those convicted of domestic violence was constitutional, and upheld the conviction on those grounds.

My basic, over-riding belief on the Second Amendment is that any case involving the right to keep and bear arms should be held to the legal standard of strict scrutiny, and that all law-abiding citizens and legal resident aliens should have the right to keep and bear arms.

This case, however, is stating that criminals who arent citizens nor legal resident aliens have Second Amendment rights and Im having a hard problem with that. Im apparently not alone, as the Fourth, Fifth, and Eighth Circuit court arent buying the argument, either. The split among the courts suggests that the basic issue will head to the U.S. Supreme court at some point.

Something that makes me even more leery about this case is that the progressives at Think Progress gleefully predict that if the Seventh Circuits views hold, they could use it to win even more rights for illegal aliens. In specific, theyre hoping these illegals will get expanded First, Fourth, and Fourteenth Amendment protections if United States vs. Meza-Rodriguez holds. Put another way, theyre hoping this Second Amendment case will turn into an anchor baby that makes it more difficult to send criminal aliens back home.

Call me a butter if you want, but I dont think for a second that the Founding Fathers would support the concept of granting criminal invaders the same legal status as legal immigrants, legal resident aliens, and citizens. Lets hope that when this case makes it to the Supreme Court that the justices with the Fourth, Fifth, and Eighth circuit courts.

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Court Rules Illegal Aliens Have Second Amendment Rights …

Suffer The Little Children, Pennhurst State Home: Eugenics …

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Aug 152015

Suffer The Little Children: A Peek into the History of Eugenics and Child Abuse by the State – Pennsylvania Pennhurst. (Full Documentary) The ground-breaking 1968 NBC10 Expose on Pennhurst State School by Bill Baldini. Haunting Similarities to current horrors of CPS Shelters + Group Homes (abuse, money benefits contractors, children worse off). Once called the shame of the nation, Pennhurst was the epicenter of a civil and human rights movement that changed the way the world saw people with intellectual and developmental disabilities. The atrocities of neglect at Pennhurst resulted in Supreme Court litigation that sounded the death knell for institutionalization worldwide. Pennhurst was the battleground in a monumental struggle to secure basic human rights for the last group of Americans to attain privileges assumed to be the natural freedoms of all persons. Pennhurst’s historic and beautiful campus is, like Valley Forge and Independence Mall to the east, hallowed ground in the struggle for dignity and self-determination, a western anchor to a freedom corridor, that, though stretching but a few miles, reaches all the way around the world. Pennhurst Memorial and Preservation Alliance seeks to ensure that those achievements won at Pennhurst are neither lost nor forgotten.…

PA & EUGENICS – In 1913, the legislature appointed a Commission for the Care of the Feeble-Minded which stated that the disabled were unfit for citizenship and posed a menace to the peace, and thus recommended a program of custodial care. The Commission desired to prevent the intermixing of the genes of those imprisoned w the general population. In the Biennial Report to the Legislature submitted by the Board of Trustees, Pennhurst’s Chief Physician quoted Henry H. Goddard, a leading eugenicist:- “Every feeble-minded person is a potential criminal. The general public, although more convinced today than ever before that it is a good thing to segregate the idiot or the distinct imbecile, they have not as yet been convinced as to the proper treatment of the defective delinquent, which is the brighter and more dangerous individual.”

More on Eugenics in Pennsylvania – — In 1857 the Supreme Court handed down the Dred Scott decision while it held session at Bedford Springs in Bedford, Pennsylvania. Dred Scott and his family walked into the Supreme Court as free people and walked out as slaves. Transferring authority from the parent to the state produced profound subservience and slavery into the entire culture. Millions of American families are now experiencing the very same fate as the Dred Scott family, as “family courts” and bureaucratic slave-makers are committing the very same atrocities in eugenics “kangaroo courts.” — Eugenics in America, Began in Bedford, Pennsylvania and Continues to Destroy through CPS Fraud, Abuse, False Accusations.…

— Cases — PENNHURST STATE SCHOOL V. HALDERMAN, 465 U. S. 89 (1984). The Court of Appeals affirmed, holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded, and rejecting petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state law claim. The court reasoned that, since that Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, citing Ex parte Young, 209 U. S. 123, the same result obtained with respect to a pendent state law claim. HELD: Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law. Pp. 465 U. S. 97-124. (a) The principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III of the Constitution. The Eleventh Amendment bars a suit against state officials when the State is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. The Court in Ex parte Young, supra, recognized an important exception to this general rule: a suit challenging the federal constitutionality of a state official’s action is not one against the State. Pp. 465 U. S. 97-103.

EX PARTE YOUNG, 209 U.S. 123 (1908), Whether a state statute is unconstitutional because the penalties for its violation are so enormous that persons affected thereby are prevented from resorting to the courts for the purpose of determining the validity of the statute, and are thereby denied the equal protection of the law, and their property rendered liable to be taken without due process of law, is a Federal question and gives the Circuit Court jurisdiction.…

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Suffer The Little Children, Pennhurst State Home: Eugenics …

Eugenics in Virginia: Buck v. Bell and Forced …

 Eugenics  Comments Off on Eugenics in Virginia: Buck v. Bell and Forced …
Aug 042015

Photograph of Supreme Court Justice Oliver Wendell Holmes. Courtesy of the Library of Congress. [1.1] Supreme Court Justice Oliver Wendell Holmes, Jr. in Buck v. Bell

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 Three generations of imbeciles are enough. ~Oliver Wendell Holmes

Writing for the majority in the Supreme Courts affirmative decision of the Buck v. Bell landmark case, Oliver Wendell Holmes Jr. described Charlottesville native Carrie Buck as the probable potential parent of socially inadequate offspring, likewise afflicted stating that her welfare and that of society will be promoted by her sterilization.

Current scholarship shows that Carrie Bucks sterilization relied on a false diagnosis premised on the now discredited science of eugenics. It is likely that Carries mother, Emma Buck, was committed to a state institution because she was considered sexually promiscuous, that the same diagnosis was made about Carrie when she became an unwed mother at the age of 17 due to being raped, and that her daughter Vivian was diagnosed as not quite normal at the age of six months largely in support of the legal effort to sterilize Carrie.

2004 Claude Moore Health Sciences Library

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Eugenics in Virginia: Buck v. Bell and Forced …

The First Amendment, as others see it

 Misc  Comments Off on The First Amendment, as others see it
Aug 042015

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

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

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

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

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

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

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

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

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

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

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The First Amendment, as others see it

So You Think You Know the Second Amendment? – The New Yorker

 Second Amendment  Comments Off on So You Think You Know the Second Amendment? – The New Yorker
Jul 222015

Does the Second Amendment prevent Congress from passing gun-control laws? The question, which is suddenly pressing, in light of the reaction to the school massacre in Newtown, is rooted in politics as much as law.

For more than a hundred years, the answer was clear, even if the words of the amendment itself were not. The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: 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. The courts had found that the first part, the militia clause, trumped the second part, the bear arms clause. In other words, according to the Supreme Court, and the lower courts as well, the amendment conferred on state militias a right to bear armsbut did not give individuals a right to own or carry a weapon.

Enter the modern National Rifle Association. Before the nineteen-seventies, the N.R.A. had been devoted mostly to non-political issues, like gun safety. But a coup dtat at the groups annual convention in 1977 brought a group of committed political conservatives to poweras part of the leading edge of the new, more rightward-leaning Republican Party. (Jill Lepore recounted this history in a recent piece for The New Yorker.) The new group pushed for a novel interpretation of the Second Amendment, one that gave individuals, not just militias, the right to bear arms. It was an uphill struggle. At first, their views were widely scorned. Chief Justice Warren E. Burger, who was no liberal, mocked the individual-rights theory of the amendment as a fraud.

But the N.R.A. kept pushingand theres a lesson here. Conservatives often embrace originalism, the idea that the meaning of the Constitution was fixed when it was ratified, in 1787. They mock the so-called liberal idea of a living constitution, whose meaning changes with the values of the country at large. But there is no better example of the living Constitution than the conservative re-casting of the Second Amendment in the last few decades of the twentieth century. (Reva Siegel, of Yale Law School, elaborates on this point in a brilliant article.)

The re-interpretation of the Second Amendment was an elaborate and brilliantly executed political operation, inside and outside of government. Ronald Reagans election in 1980 brought a gun-rights enthusiast to the White House. At the same time, Orrin Hatch, the Utah Republican, became chairman of an important subcommittee of the Senate Judiciary Committee, and he commissioned a report that claimed to find clearand long lostproof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms. The N.R.A. began commissioning academic studies aimed at proving the same conclusion. An outr constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.

And so, eventually, this theory became the law of the land. In District of Columbia v. Heller, decided in 2008, the Supreme Court embraced the individual-rights view of the Second Amendment. It was a triumph above all for Justice Antonin Scalia, the author of the opinion, but it required him to craft a thoroughly political compromise. In the eighteenth century, militias were proto-military operations, and their members had to obtain the best military hardware of the day. But Scalia could not create, in the twenty-first century, an individual right to contemporary military weaponslike tanks and Stinger missiles. In light of this, Scalia conjured a rule that said D.C. could not ban handguns because handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

So the government cannot ban handguns, but it can ban other weaponslike, say, an assault rifleor so it appears. The full meaning of the courts Heller opinion is still up for grabs. But it is clear that the scope of the Second Amendment will be determined as much by politics as by the law. The courts will respond to public pressureas they did by moving to the right on gun control in the last thirty years. And if legislators, responding to their constituents, sense a mandate for new restrictions on guns, the courts will find a way to uphold them. The battle over gun control is not just one of individual votes in Congress, but of a continuing clash of ideas, backed by political power. In other words, the law of the Second Amendment is not settled; no law, not even the Constitution, ever is.

Photograph by Mario Tama/Getty.

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So You Think You Know the Second Amendment? – The New Yorker

First Amendment to the United States Constitution …

 First Amendment  Comments Off on First Amendment to the United States Constitution …
Jul 022015

Thomas Jefferson wrote with respect to the First Amendment and its restriction on the legislative branch of the federal government in an 1802 letter to the Danbury Baptists (a religious minority concerned about the dominant position of the Congregationalist church in Connecticut):

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[9]

In Reynolds v. United States (1878) the Supreme Court used these words to declare that “it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order.” Quoting from Jefferson’s Virginia Statute for Religious Freedom the court stated further in Reynolds:

In the preamble of this act […] religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregationalist until the 1830s.[10] In Everson v. Board of Education (1947), the U.S. Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states). In the majority decision, Justice Hugo Black wrote:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another … in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State’ … That wall must be kept high and impregnable. We could not approve the slightest breach.[11]

In Torcaso v. Watkins (1961), the Supreme Court ruled that the Constitution prohibits states and the federal government from requiring any kind of religious test for public office. In the Board of Education of Kiryas Joel Village School District v. Grumet (1994),[12] Justice David Souter, writing for the majority, concluded that “government should not prefer one religion to another, or religion to irreligion.”[13] In a series of cases in the first decade of the 2000sVan Orden v. Perry (2005), McCreary County v. ACLU (2005), and Salazar v. Buono (2010)the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.[14]

Everson used the metaphor of a wall of separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States in 1879, when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison, who drafted the First Amendment; Madison used the metaphor of a “great barrier.”[15]

Justice Hugo Black adopted Jefferson’s words in the voice of the Court.[16] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be “less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities.”[17]

Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important. In the school prayer cases of the early 1960s, (Engel v. Vitale and Abington School District v. Schempp), aid seemed irrelevant; the Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion. In Walz v. Tax Commission (1970), the Court ruled that a legitimate action could not entangle government with religion; in Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[18]

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First Amendment to the United States Constitution …

Fifth Amendment | United States Constitution |

 Fifth Amendment  Comments Off on Fifth Amendment | United States Constitution |
Jun 222015

Fifth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that articulates procedural safeguards designed to protect the rights of the criminally accused and to secure life, liberty, and property. For the text of the Fifth Amendment, see below.

Similar to the First Amendment, the Fifth Amendment is divided into five clauses, representing five distinct, yet related, rights. The first clause specifies that [n]o 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. This grand jury provision requires a body to make a formal presentment or indictment of a person accused of committing a crime against the laws of the federal government. The proceeding is not a trial but rather an ex parte hearing (i.e., one in which only one party, the prosecution, presents evidence) to determine if the government has enough evidence to carry a case to trial. If the grand jury finds sufficient evidence that an offense was committed, it issues an indictment, which then permits a trial. The portion of the clause pertaining to exceptions in cases arising in the land or naval forces, or in the Militia is a corollary to Article I, Section 8, which grants Congress the power [t]o make Rules for the Government and Regulation of the land and naval Forces. Combined, they justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.

The second section is commonly referred to as the double jeopardy clause, and it protects citizens against a second prosecution after an acquittal or a conviction, as well as against multiple punishments for the same offense. Caveats to this provision include permissions to try persons for civil and criminal aspects of an offense, conspiring to commit as well as to commit an offense, and separate trials for acts that violate laws of both the federal and state governments, although federal laws generally suppress prosecution by the national government if a person is convicted of the same crime in a state proceeding.

The third section is commonly referred to as the self-incrimination clause, and it protects persons accused of committing a crime from being forced to testify against themselves. In the U.S. judicial system a person is presumed innocent, and it is the responsibility of the state (or national government) to prove guilt. Like other pieces of evidence, once presented, words can be used powerfully against a person; however, words can be manipulated in a way that many other objects cannot. Consequently, information gained from sobriety tests, police lineups, voice samples, and the like is constitutionally permissible while evidence gained from compelled testimony is not. As such, persons accused of committing crimes are protected against themselves or, more accurately, how their words may be used against them. The clause, therefore, protects a key aspect of the system as well as the rights of the criminally accused.

The fourth section is commonly referred to as the due process clause. It protects life, liberty, and property from impairment by the federal government. (The Fourteenth Amendment, ratified in 1868, protects the same rights from infringement by the states.) Chiefly concerned with fairness and justice, the due process clause seeks to preserve and protect fundamental rights and ensure that any deprivation of life, liberty, or property occurs in accordance with procedural safeguards. As such, there are both substantive and procedural considerations associated with the due process clause, and this has influenced the development of two separate tracks of due process jurisprudence: procedural and substantive. Procedural due process pertains to the rules, elements, or methods of enforcementthat is, its procedural aspects. Consider the elements of a fair trial and related Sixth Amendment protections. As long as all relevant rights of the accused are adequately protectedas long as the rules of the game, so to speak, are followedthen the government may, in fact, deprive a person of his life, liberty, or property. But what if the rules are not fair? What if the law itselfregardless of how it is enforcedseemingly deprives rights? This raises the controversial spectre of substantive due process rights. It is not inconceivable that the content of the law, regardless of how it is enforced, is itself repugnant to the Constitution because it violates fundamental rights. Over time, the Supreme Court has had an on-again, off-again relationship with liberty-based due process challenges, but it has generally abided by the principle that certain rights are implicit in the concept of ordered liberty (Palko v. Connecticut [1937]), and as such they are afforded constitutional protection. This, in turn, has led to the expansion of the meaning of the term liberty. What arguably began as freedom from restraint has transformed into a virtual cornucopia of rights reasonably related to enumerated rights, without which neither liberty nor justice would exist. For example, the right to an abortion, established in Roe v. Wade (1973), grew from privacy rights, which emerged from the penumbras of the constitution.

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Fifth Amendment | United States Constitution |

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