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First Amendment Activities | United States Courts

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Jan 312016
 

Apply landmark Supreme Court cases to contemporary scenarios related to the five pillars of the First Amendment and your rights to freedom of religion, speech, press, assembly, and petition.

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

Cox v. New Hampshire Protests and freedom to assemble

Elonis v. U.S. Facebook and free speech

Engel v. Vitale Prayer in schools and freedom of religion

Hazelwood v. Kuhlmeier Student newspapers and free speech

Morse v. Frederick School-sponsored events and free speech

Snyder v. Phelps Public concerns, private matters, and free speech

Texas v. Johnson Flag burning and free speech

U.S. v. Alvarez Lies and free speech

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First Amendment Activities | United States Courts

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N.D.Ill.: Withheld video of CPD shooting revealed during …

 Fourth Amendment  Comments Off on N.D.Ill.: Withheld video of CPD shooting revealed during …
Jan 292016
 

ABA Journal’s Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

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Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit Eleventh Circuit D.C. Circuit Federal Circuit Foreign Intell.Surv.Ct. FDsys, many district courts, other federal courts, other Military Courts: C.A.A.F., Army, AF, N-M, CG State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Curiae (Yale Law) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf) Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, “The Who Live at Hyde Park” (Showtime 2015)

“I can’t talk about my singing. I’m inside it. How can you describe something you’re inside of?” Janis Joplin

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.” Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14 (1948)

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N.D.Ill.: Withheld video of CPD shooting revealed during …

NSA warrantless surveillance (200107) – Wikipedia, the free …

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Jan 252016
 

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.

Critics claim 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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1st Amendment – Revolutionary War and Beyond!

 First Amendment  Comments Off on 1st Amendment – Revolutionary War and Beyond!
Jan 232016
 

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The 1st Amendment is the most well known to Americans of all the amendments in the Bill of Rights. It contains some of the most familiar phrases in political discussion, such as freedom of religion, freedom of speech and freedom of the press. The 1st Amendment reads like this:

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

The 1st Amendment protects your right to believe and practice whatever religious principles you choose and your right to say what you believe, even if it is unpopular or against the will of elected officials.

It also protects your right to publish any information you want, join together with whomever you want and ask the government to correct its own errors.

What exactly does the 1st Amendment mean and how does it apply to people today? Does it have relevance to you today? It sure does. In fact, it affects just about everything you do.

The 1st Amendment has seven clauses. This page has a brief description of each clause with links to more detailed information about the history and purpose of each section.

The Opening Phrase of the 1st Amendment says “Congress shall make no law.” This opening phrase immediately tells exactly who this amendment is aimed at… and that entity is Congress. So the 1st Amendment specifically prohibits Congress from making laws interfering with the rights mentioned in the amendment.

It does not however, prohibit the states from making such laws, nor does it prohibit individuals from restricting these rights to those who may be under their authority, such as a parent and child or an employer and an employee.

For one hundred years the 1st Amendment was understood to only apply to the federal government, but after the Civil War and the 14th Amendment was added to the Constitution, courts began to forbid the states to interfere with these rights as well due to an idea called “due process of law.”

Learn more about the Opening Phrase of the 1st Amendment here.

The Establishment Clause is the part of the 1st Amendment that says Congress shall make no law “respecting an establishment of religion.” This is a very crucial part of the American Constitution. It prohibits the government from establishing a state religion or denomination and from directing people in what they must believe.

Without the Establishment Clause, the government could choose a state religion and force everyone to participate in it. It could also punish anyone who didn’t adhere to its chosen faith.

This clause has been the focus of much debate in the last half century. Some Americans believe that whenever the government is involved, absolutely all religious expression must be forbidden in order to comply with the Establishment Clause.

For example, they might say a public school football team should not pray at a football game because the school is a government funded school.

Other Americans believe the government must make certain allowances for religious expressions in public events and buildings because Americans are a very religious people. They belive a high school football team prayer or a government employee displaying a cross at work does not violate the Establishment Clause because it is simply a personal expression and not an expression endorsed by the state.

Indeed, in the minds of some, banning expressions of religious faith like this is a violation of another clause of the 1st Amendment – the Free Exercise Clause, because it seeks to control the religious expressions of citizens.

Learn more about the history and purpose of the Establishment Clause here.

The Free Exercise Clause is the part of the 1st Amendment that says Congress shall make no law respecting the establishment of religion or “the free exercise thereof.” This phrase deals with the restriction on Congress to regulate anyone’s religious practices.

In general, Congress cannot tell people how they can or cannot express their religious beliefs. Such things as telling people when or how to pray, when they should go to church or to whom they should pray, are off limits to lawmakers.

In general, this is the case, but sometimes, minority religious groups may want to practice something that is not generally accepted or that the state has a very strong interest in regulating. For example, polygamy, ritual sacrifice and drug usage have been banned at times, because there is a compelling public interest in eliminating these behaviors.

In such cases, the Supreme Court has often ruled that the Free Exercise Clause does not apply. In other words, the Free Exercise Clause does not give free license to any behavior that someone says is their religious belief.

You can learn all about the Free Exercise Clause here.

The Freedom of Speech Clause is the part of the 1st Amendment that says, “Congress shall make no law… abridging the freedom of speech.”

British history contained a long string of suppression by those in authority of those with whom they disagreed. Many British subjects had been thrown in prison for voicing their religious and political beliefs. The Americans intended to prevent this from ever happening in their newly formed republic.

This is one of the protections in the Constitution that Americans hold most dear. They value it because it allows them to speak out against government policies they don’t like. It also allows them to express the religious beliefs of their choosing.

Negatively speaking, many people abuse this right by slandering people they disagree with, or using ugly and offensive language, racial epithets or hateful language about people who are different than they are.

Generally, freedom of speech is considered to be not only the words people speak, but any type of expression that is used to convey an idea. Such things as picketing, wearing symbols or burning the flag are considered protected forms of speech because they are expressing the ideas of the people participating in them.

You can learn more about the Freedom of Speech Clause by clicking here.

The Freedom of the Press Clause states that “Congress shall make no law… abridging the freedom… of the press.”

This was a very important principle to the Founding Fathers of America because of the importance the press played during the Revolutionary War.

Without the press, the Founding Fathers would have found it very difficult to distribute their views to people in other parts of the country. The press turned out to be a very important instigation in getting Americans to consolidate their views against England and in spreading the concepts that would justify a break with England.

English history contained no freedoms for the press whatsoever. All publications were subject to governmental review before publication. Criticisms of the government were strictly prosecuted as sedition. All Americans wanted the right to criticize their government freely as well as to discuss other topics whenever they chose.

If you would like to learn more about the Freedom of the Press Clause, please click here.

The Freedom of Assembly Clause is the part of the First Amendment that reads like this: “Congress shall make no law… abridging… the right of the people peaceably to assemble…” This clause is also sometimes referred to as the Freedom of Association Clause. This clause protects the right to assemble in peace to all Americans.

The Freedom of Assembly was very important to early Americans because without the right to assemble, they could not coordinate their opposition to the British government. The Freedom of Assembly was recognized to be of utmost importance if the Americans were to be successful in establishing a government of the people.

The Freedom of Assembly Clause has been relied upon by many groups in American history, such as civil rights groups, women’s suffrage groups and labor unions. Government officials in each case tried to restrict the speech of these groups and prevent them from meeting, organizing and getting their message out. The Freedom of Assembly proved to be an important factor that allowed these groups to prosper and see their visions fulfilled.

You can learn more about the history and importance of the Freedom of Assembly Clause here.

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King George III

by Allan Ramsay

The Freedom of Petition Clause of the 1st Amendment reads like this:

“Congress shall make no law… abridging the freedom… of the people… to petition the Government for a redress of grievances.”

The freedom to petition the government was very important to early Americans because of their experience with trying to get King George III and Parliament to respond to their grievances. The colonists were so angry about the Monarchy’s refusal to acknowledge their grievances that they mentioned this fact in the Declaration of Independence.

The freedom to petition the government for redress of grievances has come to include the right to do such things as picketing, protesting, conducting peaceful sitins or boycotts and addressing government officials through any media available.

You can read more about the history and meaning of the Freedom of Petition Clause here.

Preamble to the Bill of Rights Learn about the 1st Amendment here. Learn about the 2nd Amendment here. Learn about the 3rd Amendment here. Learn about the 4th Amendment here. Learn about the 5th Amendment here. Learn about the 6th Amendment here. Learn about the 7th Amendment here. Learn about the 8th Amendment here. Learn about the 9th Amendment here. Learn about the 10th Amendment here.

Read the Bill of Rights here.

Learn more about the Bill of Rights with the following articles:

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Atheism – Wikipedia, the free encyclopedia

 Atheism  Comments Off on Atheism – Wikipedia, the free encyclopedia
Jan 202016
 

Atheism is, in a broad sense, the rejection of belief in the existence of deities.[1][2] In a narrower sense, atheism is specifically the position that there are no deities.[3][4][5] Most inclusively, atheism is the absence of belief that any deities exist.[4][5][6][7] Atheism is contrasted with theism,[8][9] which, in its most general form, is the belief that at least one deity exists.[9][10][11]

The term “atheism” originated from the Greek (atheos), meaning “without god(s)”, used as a pejorative term applied to those thought to reject the gods worshiped by the larger society.[12] With the spread of freethought, skeptical inquiry, and subsequent increase in criticism of religion, application of the term narrowed in scope. The first individuals to identify themselves using the word “atheist” lived in the 18th century during the Age of Enlightenment. The French Revolution, noted for its “unprecedented atheism,” witnessed the first major political movement in history to advocate for the supremacy of human reason.[14]

Arguments for atheism range from the philosophical to social and historical approaches. Rationales for not believing in deities include arguments that there is a lack of empirical evidence;[15][16] the problem of evil; the argument from inconsistent revelations; the rejection of concepts that cannot be falsified; and the argument from nonbelief.[15][17] Although some atheists have adopted secular philosophies (eg. humanism and skepticism),[18][19] there is no one ideology or set of behaviors to which all atheists adhere.[20] Many atheists hold that atheism is a more parsimonious worldview than theism and therefore that the burden of proof lies not on the atheist to disprove the existence of God but on the theist to provide a rationale for theism.[21]

Since conceptions of atheism vary, accurate estimations of current numbers of atheists are difficult.[22] Several comprehensive global polls on the subject have been conducted by Gallup International: their 2015 poll featured over 64,000 respondents and indicated that 11% were “convinced atheists” whereas an earlier 2012 poll found that 13% of respondents were “convinced atheists.”[23][24] An older survey by the BBC, in 2004, recorded atheists as comprising 8% of the world’s population.[25] Other older estimates have indicated that atheists comprise 2% of the world’s population, while the irreligious add a further 12%.[26] According to these polls, Europe and East Asia are the regions with the highest rates of atheism. In 2015, 61% of people in China reported that they were atheists.[27] The figures for a 2010 Eurobarometer survey in the European Union (EU) reported that 20% of the EU population claimed not to believe in “any sort of spirit, God or life force”.[28]

Writers disagree on how best to define and classify atheism,[29] contesting what supernatural entities it applies to, whether it is a philosophic position in its own right or merely the absence of one, and whether it requires a conscious, explicit rejection. Atheism has been regarded as compatible with agnosticism,[30][31][32][33][34][35][36] and has also been contrasted with it.[37][38][39] A variety of categories have been used to distinguish the different forms of atheism.

Some of the ambiguity and controversy involved in defining atheism arises from difficulty in reaching a consensus for the definitions of words like deity and god. The plurality of wildly different conceptions of God and deities leads to differing ideas regarding atheism’s applicability. The ancient Romans accused Christians of being atheists for not worshiping the pagan deities. Gradually, this view fell into disfavor as theism came to be understood as encompassing belief in any divinity.

With respect to the range of phenomena being rejected, atheism may counter anything from the existence of a deity, to the existence of any spiritual, supernatural, or transcendental concepts, such as those of Buddhism, Hinduism, Jainism, and Taoism.[41]

Definitions of atheism also vary in the degree of consideration a person must put to the idea of gods to be considered an atheist. Atheism has sometimes been defined to include the simple absence of belief that any deities exist. This broad definition would include newborns and other people who have not been exposed to theistic ideas. As far back as 1772, Baron d’Holbach said that “All children are born Atheists; they have no idea of God.”[42] Similarly, George H. Smith (1979) suggested that: “The man who is unacquainted with theism is an atheist because he does not believe in a god. This category would also include the child with the conceptual capacity to grasp the issues involved, but who is still unaware of those issues. The fact that this child does not believe in god qualifies him as an atheist.”[43] Smith coined the term implicit atheism to refer to “the absence of theistic belief without a conscious rejection of it” and explicit atheism to refer to the more common definition of conscious disbelief. Ernest Nagel contradicts Smith’s definition of atheism as merely “absence of theism”, acknowledging only explicit atheism as true “atheism”.[44]

Philosophers such as Antony Flew[45] and Michael Martin have contrasted positive (strong/hard) atheism with negative (weak/soft) atheism. Positive atheism is the explicit affirmation that gods do not exist. Negative atheism includes all other forms of non-theism. According to this categorization, anyone who is not a theist is either a negative or a positive atheist. The terms weak and strong are relatively recent, while the terms negative and positive atheism are of older origin, having been used (in slightly different ways) in the philosophical literature[45] and in Catholic apologetics.[46] Under this demarcation of atheism, most agnostics qualify as negative atheists.

While Martin, for example, asserts that agnosticism entails negative atheism,[33] many agnostics see their view as distinct from atheism,[47][48] which they may consider no more justified than theism or requiring an equal conviction.[47] The assertion of unattainability of knowledge for or against the existence of gods is sometimes seen as indication that atheism requires a leap of faith.[49][50] Common atheist responses to this argument include that unproven religious propositions deserve as much disbelief as all other unproven propositions,[51] and that the unprovability of a god’s existence does not imply equal probability of either possibility.[52] Scottish philosopher J. J. C. Smart even argues that “sometimes a person who is really an atheist may describe herself, even passionately, as an agnostic because of unreasonable generalised philosophical skepticism which would preclude us from saying that we know anything whatever, except perhaps the truths of mathematics and formal logic.”[53] Consequently, some atheist authors such as Richard Dawkins prefer distinguishing theist, agnostic and atheist positions along a spectrum of theistic probabilitythe likelihood that each assigns to the statement “God exists”.

Before the 18th century, the existence of God was so accepted in the western world that even the possibility of true atheism was questioned. This is called theistic innatismthe notion that all people believe in God from birth; within this view was the connotation that atheists are simply in denial.[55]

There is also a position claiming that atheists are quick to believe in God in times of crisis, that atheists make deathbed conversions, or that “there are no atheists in foxholes”.[56] There have however been examples to the contrary, among them examples of literal “atheists in foxholes”.[57]

Some atheists have doubted the very need for the term “atheism”. In his book Letter to a Christian Nation, Sam Harris wrote:

In fact, “atheism” is a term that should not even exist. No one ever needs to identify himself as a “non-astrologer” or a “non-alchemist”. We do not have words for people who doubt that Elvis is still alive or that aliens have traversed the galaxy only to molest ranchers and their cattle. Atheism is nothing more than the noises reasonable people make in the presence of unjustified religious beliefs.

The source of man’s unhappiness is his ignorance of Nature. The pertinacity with which he clings to blind opinions imbibed in his infancy, which interweave themselves with his existence, the consequent prejudice that warps his mind, that prevents its expansion, that renders him the slave of fiction, appears to doom him to continual error.

The broadest demarcation of atheistic rationale is between practical and theoretical atheism.

In practical or pragmatic atheism, also known as apatheism, individuals live as if there are no gods and explain natural phenomena without reference to any deities. The existence of gods is not rejected, but may be designated unnecessary or useless; gods neither provide purpose to life, nor influence everyday life, according to this view.[60] A form of practical atheism with implications for the scientific community is methodological naturalismthe “tacit adoption or assumption of philosophical naturalism within scientific method with or without fully accepting or believing it.”[61]

Practical atheism can take various forms:

Theoretical (or theoric) atheism explicitly posits arguments against the existence of gods, responding to common theistic arguments such as the argument from design or Pascal’s Wager. Theoretical atheism is mainly an ontology; more precisely, a physical ontology.

Epistemological atheism argues that people cannot know a God or determine the existence of a God. The foundation of epistemological atheism is agnosticism, which takes a variety of forms. In the philosophy of immanence, divinity is inseparable from the world itself, including a person’s mind, and each person’s consciousness is locked in the subject. According to this form of agnosticism, this limitation in perspective prevents any objective inference from belief in a god to assertions of its existence. The rationalistic agnosticism of Kant and the Enlightenment only accepts knowledge deduced with human rationality; this form of atheism holds that gods are not discernible as a matter of principle, and therefore cannot be known to exist. Skepticism, based on the ideas of Hume, asserts that certainty about anything is impossible, so one can never know for sure whether or not a god exists. Hume, however, held that such unobservable metaphysical concepts should be rejected as “sophistry and illusion”.[63] The allocation of agnosticism to atheism is disputed; it can also be regarded as an independent, basic worldview.[60]

Other arguments for atheism that can be classified as epistemological or ontological, including logical positivism and ignosticism, assert the meaninglessness or unintelligibility of basic terms such as “God” and statements such as “God is all-powerful.” Theological noncognitivism holds that the statement “God exists” does not express a proposition, but is nonsensical or cognitively meaningless. It has been argued both ways as to whether such individuals can be classified into some form of atheism or agnosticism. Philosophers A. J. Ayer and Theodore M. Drange reject both categories, stating that both camps accept “God exists” as a proposition; they instead place noncognitivism in its own category.[64][65]

One author writes:

“Metaphysical atheism… includes all doctrines that hold to metaphysical monism (the homogeneity of reality). Metaphysical atheism may be either: a) absolute an explicit denial of God’s existence associated with materialistic monism (all materialistic trends, both in ancient and modern times); b) relative the implicit denial of God in all philosophies that, while they accept the existence of an absolute, conceive of the absolute as not possessing any of the attributes proper to God: transcendence, a personal character or unity. Relative atheism is associated with idealistic monism (pantheism, panentheism, deism).”[66]

Logical atheism holds that the various conceptions of gods, such as the personal god of Christianity, are ascribed logically inconsistent qualities. Such atheists present deductive arguments against the existence of God, which assert the incompatibility between certain traits, such as perfection, creator-status, immutability, omniscience, omnipresence, omnipotence, omnibenevolence, transcendence, personhood (a personal being), nonphysicality, justice, and mercy.[15]

Theodicean atheists believe that the world as they experience it cannot be reconciled with the qualities commonly ascribed to God and gods by theologians. They argue that an omniscient, omnipotent, and omnibenevolent God is not compatible with a world where there is evil and suffering, and where divine love is hidden from many people.[17] A similar argument is attributed to Siddhartha Gautama, the founder of Buddhism.[68]

Philosopher Ludwig Feuerbach[69] and psychoanalyst Sigmund Freud have argued that God and other religious beliefs are human inventions, created to fulfill various psychological and emotional wants or needs. This is also a view of many Buddhists.[70]Karl Marx and Friedrich Engels, influenced by the work of Feuerbach, argued that belief in God and religion are social functions, used by those in power to oppress the working class. According to Mikhail Bakunin, “the idea of God implies the abdication of human reason and justice; it is the most decisive negation of human liberty, and necessarily ends in the enslavement of mankind, in theory and practice.” He reversed Voltaire’s famous aphorism that if God did not exist, it would be necessary to invent him, writing instead that “if God really existed, it would be necessary to abolish him.”[71]

Atheism is acceptable within some religious and spiritual belief systems, including Hinduism, Jainism, Buddhism, Syntheism, Ralism,[72] and Neopagan movements[73] such as Wicca.[74]stika schools in Hinduism hold atheism to be a valid path to moksha, but extremely difficult, for the atheist can not expect any help from the divine on their journey.[75] Jainism believes the universe is eternal and has no need for a creator deity, however Tirthankaras are revered that can transcend space and time [76] and have more power than the god Indra.[77]Secular Buddhism does not advocate belief in gods. Early Buddhism was atheistic as Gautama Buddha’s path involved no mention of gods. Later conceptions of Buddhism consider Buddha himself a god, suggest adherents can attain godhood, and revere Bodhisattvas[78] and Eternal Buddha.

Axiological, or constructive, atheism rejects the existence of gods in favor of a “higher absolute”, such as humanity. This form of atheism favors humanity as the absolute source of ethics and values, and permits individuals to resolve moral problems without resorting to God. Marx and Freud used this argument to convey messages of liberation, full-development, and unfettered happiness.[60] One of the most common criticisms of atheism has been to the contrarythat denying the existence of a god leads to moral relativism, leaving one with no moral or ethical foundation,[79] or renders life meaningless and miserable.[80]Blaise Pascal argued this view in his Penses.[81]

French philosopher Jean-Paul Sartre identified himself as a representative of an “atheist existentialism” concerned less with denying the existence of God than with establishing that “man needs… to find himself again and to understand that nothing can save him from himself, not even a valid proof of the existence of God.” Sartre said a corollary of his atheism was that “if God does not exist, there is at least one being in whom existence precedes essence, a being who exists before he can be defined by any concept, and… this being is man.” The practical consequence of this atheism was described by Sartre as meaning that there are no a priori rules or absolute values that can be invoked to govern human conduct, and that humans are “condemned” to invent these for themselves, making “man” absolutely “responsible for everything he does”.

Sociologist Phil Zuckerman analyzed previous social science research on secularity and non-belief, and concluded that societal well-being is positively correlated with irreligion. He found that there are much lower concentrations of atheism and secularity in poorer, less developed nations (particularly in Africa and South America) than in the richer industrialized democracies.[85][86] His findings relating specifically to atheism in the US were that compared to religious people in the US, “atheists and secular people” are less nationalistic, prejudiced, antisemitic, racist, dogmatic, ethnocentric, closed-minded, and authoritarian, and in US states with the highest percentages of atheists, the murder rate is lower than average. In the most religious states, the murder rate is higher than average.[87][88]

People who self-identify as atheists are often assumed to be irreligious, but some sects within major religions reject the existence of a personal, creator deity.[90] In recent years, certain religious denominations have accumulated a number of openly atheistic followers, such as atheistic or humanistic Judaism[91][92] and Christian atheists.[93][94][95]

The strictest sense of positive atheism does not entail any specific beliefs outside of disbelief in any deity; as such, atheists can hold any number of spiritual beliefs. For the same reason, atheists can hold a wide variety of ethical beliefs, ranging from the moral universalism of humanism, which holds that a moral code should be applied consistently to all humans, to moral nihilism, which holds that morality is meaningless.[96]

Philosophers such as Slavoj iek,[97]Alain de Botton,[98] and Alexander Bard and Jan Sderqvist,[99] have all argued that atheists should reclaim religion as an act of defiance against theism, precisely not to leave religion as an unwarranted monopoly to theists.

According to Plato’s Euthyphro dilemma, the role of the gods in determining right from wrong is either unnecessary or arbitrary. The argument that morality must be derived from God, and cannot exist without a wise creator, has been a persistent feature of political if not so much philosophical debate.[100][101][102] Moral precepts such as “murder is wrong” are seen as divine laws, requiring a divine lawmaker and judge. However, many atheists argue that treating morality legalistically involves a false analogy, and that morality does not depend on a lawmaker in the same way that laws do.[103]Friedrich Nietzsche believed in a morality independent of theistic belief, and stated that morality based upon God “has truth only if God is truthit stands or falls with faith in God.”[104][105][106]

There exist normative ethical systems that do not require principles and rules to be given by a deity. Some include virtue ethics, social contract, Kantian ethics, utilitarianism, and Objectivism. Sam Harris has proposed that moral prescription (ethical rule making) is not just an issue to be explored by philosophy, but that we can meaningfully practice a science of morality. Any such scientific system must, nevertheless, respond to the criticism embodied in the naturalistic fallacy.[107]

Philosophers Susan Neiman[108] and Julian Baggini[109] (among others) assert that behaving ethically only because of divine mandate is not true ethical behavior but merely blind obedience. Baggini argues that atheism is a superior basis for ethics, claiming that a moral basis external to religious imperatives is necessary to evaluate the morality of the imperatives themselvesto be able to discern, for example, that “thou shalt steal” is immoral even if one’s religion instructs itand that atheists, therefore, have the advantage of being more inclined to make such evaluations.[110] The contemporary British political philosopher Martin Cohen has offered the more historically telling example of Biblical injunctions in favour of torture and slavery as evidence of how religious injunctions follow political and social customs, rather than vice versa, but also noted that the same tendency seems to be true of supposedly dispassionate and objective philosophers.[111] Cohen extends this argument in more detail in Political Philosophy from Plato to Mao, where he argues that the Qur’an played a role in perpetuating social codes from the early 7th century despite changes in secular society.[112]

Some prominent atheistsmost recently Christopher Hitchens, Daniel Dennett, Sam Harris and Richard Dawkins, and following such thinkers as Bertrand Russell, Robert G. Ingersoll, Voltaire, and novelist Jos Saramagohave criticized religions, citing harmful aspects of religious practices and doctrines.[113]

The 19th-century German political theorist and sociologist Karl Marx called religion “the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people”. He goes on to say, “The abolition of religion as the illusory happiness of the people is the demand for their real happiness. To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions. The criticism of religion is, therefore, in embryo, the criticism of that vale of tears of which religion is the halo.[114]Lenin said that “every religious idea and every idea of God “is unutterable vileness… of the most dangerous kind, ‘contagion’ of the most abominable kind. Millions of sins, filthy deeds, acts of violence and physical contagions… are far less dangerous than the subtle, spiritual idea of God decked out in the smartest ideological constumes…”[115]

Sam Harris criticises Western religion’s reliance on divine authority as lending itself to authoritarianism and dogmatism. There is a correlation between religious fundamentalism and extrinsic religion (when religion is held because it serves ulterior interests)[117] and authoritarianism, dogmatism, and prejudice.[118] These argumentscombined with historical events that are argued to demonstrate the dangers of religion, such as the Crusades, inquisitions, witch trials, and terrorist attackshave been used in response to claims of beneficial effects of belief in religion.[119] Believers counter-argue that some regimes that espouse atheism, such as in Soviet Russia, have also been guilty of mass murder.[120][121] In response to those claims, atheists such as Sam Harris and Richard Dawkins have stated that Stalin’s atrocities were influenced not by atheism but by dogmatic Marxism, and that while Stalin and Mao happened to be atheists, they did not do their deeds in the name of atheism.[123]

In early ancient Greek, the adjective theos (, from the privative – + “god”) meant “godless”. It was first used as a term of censure roughly meaning “ungodly” or “impious”. In the 5th century BCE, the word began to indicate more deliberate and active godlessness in the sense of “severing relations with the gods” or “denying the gods”. The term (asebs) then came to be applied against those who impiously denied or disrespected the local gods, even if they believed in other gods. Modern translations of classical texts sometimes render theos as “atheistic”. As an abstract noun, there was also (atheots), “atheism”. Cicero transliterated the Greek word into the Latin theos. The term found frequent use in the debate between early Christians and Hellenists, with each side attributing it, in the pejorative sense, to the other.[12]

The term atheist (from Fr. athe), in the sense of “one who… denies the existence of God or gods”,[125] predates atheism in English, being first found as early as 1566,[126] and again in 1571.[127]Atheist as a label of practical godlessness was used at least as early as 1577.[128] The term atheism was derived from the French athisme,[129] and appears in English about 1587.[130] An earlier work, from about 1534, used the term atheonism.[131][132] Related words emerged later: deist in 1621,[133]theist in 1662,[134]deism in 1675,[135] and theism in 1678.[136] At that time “deist” and “deism” already carried their modern meaning. The term theism came to be contrasted with deism.

Karen Armstrong writes that “During the sixteenth and seventeenth centuries, the word ‘atheist’ was still reserved exclusively for polemic… The term ‘atheist’ was an insult. Nobody would have dreamed of calling himself an atheist.”

Atheism was first used to describe a self-avowed belief in late 18th-century Europe, specifically denoting disbelief in the monotheistic Abrahamic god.[137] In the 20th century, globalization contributed to the expansion of the term to refer to disbelief in all deities, though it remains common in Western society to describe atheism as simply “disbelief in God”.

While the earliest-found usage of the term atheism is in 16th-century France,[129][130] ideas that would be recognized today as atheistic are documented from the Vedic period and the classical antiquity.

Atheistic schools are found in early Indian thought and have existed from the times of the historical Vedic religion.[138] Among the six orthodox schools of Hindu philosophy, Samkhya, the oldest philosophical school of thought, does not accept God, and the early Mimamsa also rejected the notion of God.[139] The thoroughly materialistic and anti-theistic philosophical Crvka (also called Nastika or Lokaiata) school that originated in India around the 6th century BCE is probably the most explicitly atheistic school of philosophy in India, similar to the Greek Cyrenaic school. This branch of Indian philosophy is classified as heterodox due to its rejection of the authority of Vedas and hence is not considered part of the six orthodox schools of Hinduism, but it is noteworthy as evidence of a materialistic movement within Hinduism.[140] Chatterjee and Datta explain that our understanding of Crvka philosophy is fragmentary, based largely on criticism of the ideas by other schools, and that it is not a living tradition:

“Though materialism in some form or other has always been present in India, and occasional references are found in the Vedas, the Buddhistic literature, the Epics, as well as in the later philosophical works we do not find any systematic work on materialism, nor any organized school of followers as the other philosophical schools possess. But almost every work of the other schools states, for refutation, the materialistic views. Our knowledge of Indian materialism is chiefly based on these.”[141]

Other Indian philosophies generally regarded as atheistic include Classical Samkhya and Purva Mimamsa. The rejection of a personal creator God is also seen in Jainism and Buddhism in India.[142]

Western atheism has its roots in pre-Socratic Greek philosophy, but did not emerge as a distinct world-view until the late Enlightenment.[143] The 5th-century BCE Greek philosopher Diagoras is known as the “first atheist”,[144] and is cited as such by Cicero in his De Natura Deorum.[145]Atomists such as Democritus attempted to explain the world in a purely materialistic way, without reference to the spiritual or mystical. Critias viewed religion as a human invention used to frighten people into following moral order[146] and Prodicus also appears to have made clear atheistic statements in his work. Philodemus reports that Prodicus believed that “the gods of popular belief do not exist nor do they know, but primitive man, [out of admiration, deified] the fruits of the earth and virtually everything that contributed to his existence”. Protagoras has sometimes been taken to be an atheist but rather espoused agnostic views, commenting that “Concerning the gods I am unable to discover whether they exist or not, or what they are like in form; for there are many hindrances to knowledge, the obscurity of the subject and the brevity of human life.”[147] In the 3rd-century BCE the Greek philosophers Theodorus Cyrenaicus[145][148] and Strato of Lampsacus[149] did not believe gods exist.

Socrates (c. 470399 BCE) was associated in the Athenian public mind with the trends in pre-Socratic philosophy towards naturalistic inquiry and the rejection of divine explanations for phenomena. Although such an interpretation misrepresents his thought he was portrayed in such a way in Aristophanes’ comic play Clouds and was later to be tried and executed for impiety and corrupting the young. At his trial Socrates is reported as vehemently denying that he was an atheist and contemporary scholarship provides little reason to doubt this claim.[150][151]

Euhemerus (c. 300 BCE) published his view that the gods were only the deified rulers, conquerors and founders of the past, and that their cults and religions were in essence the continuation of vanished kingdoms and earlier political structures.[152] Although not strictly an atheist, Euhemerus was later criticized for having “spread atheism over the whole inhabited earth by obliterating the gods”.[153]

Also important in the history of atheism was Epicurus (c. 300 BCE). Drawing on the ideas of Democritus and the Atomists, he espoused a materialistic philosophy according to which the universe was governed by the laws of chance without the need for divine intervention (see scientific determinism). Although he stated that deities existed, he believed that they were uninterested in human existence. The aim of the Epicureans was to attain peace of mind and one important way of doing this was by exposing fear of divine wrath as irrational. The Epicureans also denied the existence of an afterlife and the need to fear divine punishment after death.[154]

The Roman philosopher Sextus Empiricus held that one should suspend judgment about virtually all beliefsa form of skepticism known as Pyrrhonismthat nothing was inherently evil, and that ataraxia (“peace of mind”) is attainable by withholding one’s judgment. His relatively large volume of surviving works had a lasting influence on later philosophers.[155]

The meaning of “atheist” changed over the course of classical antiquity. The early Christians were labeled atheists by non-Christians because of their disbelief in pagan gods.[156] During the Roman Empire, Christians were executed for their rejection of the Roman gods in general and Emperor-worship in particular. When Christianity became the state religion of Rome under Theodosius I in 381, heresy became a punishable offense.[157]

During the Early Middle Ages, the Islamic world underwent a Golden Age. With the associated advances in science and philosophy, Arab and Persian lands produced outspoken rationalists and atheists, including Muhammad al Warraq (fl. 7th century), Ibn al-Rawandi (827911), Al-Razi (854925), and Al-Maarri (9731058). Al-Ma’arri wrote and taught that religion itself was a “fable invented by the ancients”[158] and that humans were “of two sorts: those with brains, but no religion, and those with religion, but no brains.”[159] Despite being relatively prolific writers, nearly none of their writing survives to the modern day, most of what little remains being preserved through quotations and excerpts in later works by Muslim apologists attempting to refute them.[160] Other prominent Golden Age scholars have been associated with rationalist thought and atheism as well, although the current intellectual atmosphere in the Islamic world, and the scant evidence that survives from the era, make this point a contentious one today.

In Europe, the espousal of atheistic views was rare during the Early Middle Ages and Middle Ages (see Medieval Inquisition); metaphysics and theology were the dominant interests pertaining to religion.[161] There were, however, movements within this period that furthered heterodox conceptions of the Christian god, including differing views of the nature, transcendence, and knowability of God. Individuals and groups such as Johannes Scotus Eriugena, David of Dinant, Amalric of Bena, and the Brethren of the Free Spirit maintained Christian viewpoints with pantheistic tendencies. Nicholas of Cusa held to a form of fideism he called docta ignorantia (“learned ignorance”), asserting that God is beyond human categorization, and thus our knowledge of him is limited to conjecture. William of Ockham inspired anti-metaphysical tendencies with his nominalistic limitation of human knowledge to singular objects, and asserted that the divine essence could not be intuitively or rationally apprehended by human intellect. Followers of Ockham, such as John of Mirecourt and Nicholas of Autrecourt furthered this view. The resulting division between faith and reason influenced later radical and reformist theologians such as John Wycliffe, Jan Hus, and Martin Luther.[161]

The Renaissance did much to expand the scope of free thought and skeptical inquiry. Individuals such as Leonardo da Vinci sought experimentation as a means of explanation, and opposed arguments from religious authority. Other critics of religion and the Church during this time included Niccol Machiavelli, Bonaventure des Priers, Michel de Montaigne, and Franois Rabelais.[155]

Historian Geoffrey Blainey wrote that the Reformation had paved the way for atheists by attacking the authority of the Catholic Church, which in turn “quietly inspired other thinkers to attack the authority of the new Protestant churches”.[162]Deism gained influence in France, Prussia, and England. The philosopher Baruch Spinoza was “probably the first well known ‘semi-atheist’ to announce himself in a Christian land in the modern era”, according to Blainey. Spinoza believed that natural laws explained the workings of the universe. In 1661 he published his Short Treatise on God.[163]

Criticism of Christianity became increasingly frequent in the 17th and 18th centuries, especially in France and England, where there appears to have been a religious malaise, according to contemporary sources. Some Protestant thinkers, such as Thomas Hobbes, espoused a materialist philosophy and skepticism toward supernatural occurrences, while Spinoza rejected divine providence in favour of a panentheistic naturalism. By the late 17th century, deism came to be openly espoused by intellectuals such as John Toland who coined the term “pantheist”.[164]

The first known explicit atheist was the German critic of religion Matthias Knutzen in his three writings of 1674.[165] He was followed by two other explicit atheist writers, the Polish ex-Jesuit philosopher Kazimierz yszczyski and in the 1720s by the French priest Jean Meslier.[166] In the course of the 18th century, other openly atheistic thinkers followed, such as Baron d’Holbach, Jacques-Andr Naigeon, and other French materialists.[167]John Locke in contrast, though an advocate of tolerance, urged authorities not to tolerate atheism, believing that the denial of God’s existence would undermine the social order and lead to chaos.[168]

The philosopher David Hume developed a skeptical epistemology grounded in empiricism, and Immanuel Kant’s philosophy has strongly questioned the very possibility of a metaphysical knowledge. Both philosophers undermined the metaphysical basis of natural theology and criticized classical arguments for the existence of God.

Blainey notes that, although Voltaire is widely considered to have strongly contributed to atheistic thinking during the Revolution, he also considered fear of God to have discouraged further disorder, having said “If God did not exist, it would be necessary to invent him.”[169] In Reflections on the Revolution in France (1790), the philosopher Edmund Burke denounced atheism, writing of a “literary cabal” who had “some years ago formed something like a regular plan for the destruction of the Christian religion. This object they pursued with a degree of zeal which hitherto had been discovered only in the propagators of some system of piety… These atheistical fathers have a bigotry of their own…”. But, Burke asserted, “man is by his constitution a religious animal” and “atheism is against, not only our reason, but our instincts; and… it cannot prevail long”.[170]

Baron d’Holbach was a prominent figure in the French Enlightenment who is best known for his atheism and for his voluminous writings against religion, the most famous of them being The System of Nature (1770) but also Christianity Unveiled. One goal of the French Revolution was a restructuring and subordination of the clergy with respect to the state through the Civil Constitution of the Clergy. Attempts to enforce it led to anti-clerical violence and the expulsion of many clergy from France, lasting until the Thermidorian Reaction. The radical Jacobins seized power in 1793, ushering in the Reign of Terror. The Jacobins were deists and introduced the Cult of the Supreme Being as a new French state religion. Some atheists surrounding Jacques Hbert instead sought to establish a Cult of Reason, a form of atheistic pseudo-religion with a goddess personifying reason. The Napoleonic era further institutionalized the secularization of French society.

In the latter half of the 19th century, atheism rose to prominence under the influence of rationalistic and freethinking philosophers. Many prominent German philosophers of this era denied the existence of deities and were critical of religion, including Ludwig Feuerbach, Arthur Schopenhauer, Max Stirner, Karl Marx, and Friedrich Nietzsche.[171]

G.J. Holyoake was the last person (1842) imprisoned in Great Britain due to atheist beliefs.[172]Stephen Law states that Holyoake “first coined the term ‘secularism'”.[173]

Atheism in the 20th century, particularly in the form of practical atheism, advanced in many societies. Atheistic thought found recognition in a wide variety of other, broader philosophies, such as existentialism, objectivism, secular humanism, nihilism, anarchism, logical positivism, Marxism, feminism,[174] and the general scientific and rationalist movement.

In addition, state atheism emerged in Eastern Europe and Asia during that period, particularly in the Soviet Union under Vladimir Lenin and Joseph Stalin, and in Communist China under Mao Zedong. Atheist and anti-religious policies in the Soviet Union included numerous legislative acts, the outlawing of religious instruction in the schools, and the emergence of the League of Militant Atheists.[175][176] After Mao, the Chinese Communist Party remains an atheist organization, and regulates, but does not completely forbid, the practice of religion in mainland China.[177][178][179]

While Geoffrey Blainey has written that “the most ruthless leaders in the Second World War were atheists and secularists who were intensely hostile to both Judaism and Christianity”,[180] Richard Madsen has pointed out that Hitler and Stalin each opened and closed churches as a matter of political expedience, and Stalin softened his opposition to Christianity in order to improve public acceptance of his regime during the war.[181] Blackford and Schklenk have written that “the Soviet Union was undeniably an atheist state, and the same applies to Maoist China and Pol Pot’s fanatical Khmer Rouge regime in Cambodia in the 1970s. That does not, however, show that the atrocities committed by these totalitarian dictatorships were the result of atheist beliefs, carried out in the name of atheism, or caused primarily by the atheistic aspects of the relevant forms of communism.”[182]

Logical positivism and scientism paved the way for neopositivism, analytical philosophy, structuralism, and naturalism. Neopositivism and analytical philosophy discarded classical rationalism and metaphysics in favor of strict empiricism and epistemological nominalism. Proponents such as Bertrand Russell emphatically rejected belief in God. In his early work, Ludwig Wittgenstein attempted to separate metaphysical and supernatural language from rational discourse. A. J. Ayer asserted the unverifiability and meaninglessness of religious statements, citing his adherence to the empirical sciences. Relatedly the applied structuralism of Lvi-Strauss sourced religious language to the human subconscious in denying its transcendental meaning. J. N. Findlay and J. J. C. Smart argued that the existence of God is not logically necessary. Naturalists and materialistic monists such as John Dewey considered the natural world to be the basis of everything, denying the existence of God or immortality.[53][183]

Other leaders like Periyar E. V. Ramasamy, a prominent atheist leader of India, fought against Hinduism and Brahmins for discriminating and dividing people in the name of caste and religion.[184] This was highlighted in 1956 when he arranged for the erection of a statue depicting a Hindu god in a humble representation and made antitheistic statements.[185]

Atheist Vashti McCollum was the plaintiff in a landmark 1948 Supreme Court case that struck down religious education in US public schools.[186]Madalyn Murray O’Hair was perhaps one of the most influential American atheists; she brought forth the 1963 Supreme Court case Murray v. Curlett which banned compulsory prayer in public schools.[187] In 1966, Time magazine asked “Is God Dead?”[188] in response to the Death of God theological movement, citing the estimation that nearly half of all people in the world lived under an anti-religious power, and millions more in Africa, Asia, and South America seemed to lack knowledge of the Christian view of theology.[189] The Freedom From Religion Foundation was co-founded by Anne Nicol Gaylor and her daughter, Annie Laurie Gaylor, in 1976 in the United States, and incorporated nationally in 1978. It promotes the separation of church and state.[190][191]

Since the fall of the Berlin Wall, the number of actively anti-religious regimes has reduced considerably. In 2006, Timothy Shah of the Pew Forum noted “a worldwide trend across all major religious groups, in which God-based and faith-based movements in general are experiencing increasing confidence and influence vis–vis secular movements and ideologies.”[192] However, Gregory S. Paul and Phil Zuckerman consider this a myth and suggest that the actual situation is much more complex and nuanced.[193]

A 2010 survey found that those identifying themselves as atheists or agnostics are on average more knowledgeable about religion than followers of major faiths. Nonbelievers scored better on questions about tenets central to Protestant and Catholic faiths. Only Mormon and Jewish faithful scored as well as atheists and agnostics.[194]

In 2012, the first “Women in Secularism” conference was held in Arlington, Virginia.[195] Secular Woman was organized in 2012 as a national organization focused on nonreligious women.[196] The atheist feminist movement has also become increasingly focused on fighting sexism and sexual harassment within the atheist movement itself.[197] In August 2012, Jennifer McCreight (the organizer of Boobquake) founded a movement within atheism known as Atheism Plus, or A+, that “applies skepticism to everything, including social issues like sexism, racism, politics, poverty, and crime”.[198][199][200]

In 2013 the first atheist monument on American government property was unveiled at the Bradford County Courthouse in Florida: a 1,500-pound granite bench and plinth inscribed with quotes by Thomas Jefferson, Benjamin Franklin, and Madalyn Murray O’Hair.[201][202]

New Atheism is the name given to a movement among some early-21st-century atheist writers who have advocated the view that “religion should not simply be tolerated but should be countered, criticized, and exposed by rational argument wherever its influence arises.”[203] The movement is commonly associated with Sam Harris, Daniel C. Dennett, Richard Dawkins, Victor J. Stenger, and Christopher Hitchens.[204] Several best-selling books by these authors, published between 2004 and 2007, form the basis for much of the discussion of New Atheism.

These atheists generally seek to disassociate themselves from the mass political atheism that gained ascendency in various nations in the 20th century. In best selling books, the religiously motivated terrorist events of 9/11 and the partially successful attempts of the Discovery Institute to change the American science curriculum to include creationist ideas, together with support for those ideas from George W. Bush in 2005, have been cited by authors such as Harris, Dennett, Dawkins, Stenger, and Hitchens as evidence of a need to move society towards atheism.[206]

It is difficult to quantify the number of atheists in the world. Respondents to religious-belief polls may define “atheism” differently or draw different distinctions between atheism, non-religious beliefs, and non-theistic religious and spiritual beliefs.[207] A Hindu atheist would declare oneself as a Hindu, although also being an atheist at the same time.[208] A 2010 survey published in Encyclopdia Britannica found that the non-religious made up about 9.6% of the world’s population, and atheists about 2.0%, with a very large majority based in Asia. This figure did not include those who follow atheistic religions, such as some Buddhists.[209] The average annual change for atheism from 2000 to 2010 was 0.17%.[209] A broad figure estimates the number of atheists and agnostics on Earth at 1.1 billion.[210]

According to global studies done by Gallup International, 13% of respondents were “convinced atheists” in 2012 and 11% were “convinced atheists” in 2015.[24][211] As of 2012, the top ten countries with people who viewed themselves as “convinced atheists” were China (47%), Japan (31%), the Czech Republic (30%), France (29%), South Korea (15%), Germany (15%), Netherlands (14%), Austria (10%), Iceland (10%), Australia (10%), and the Republic of Ireland (10%) [212]

According to the 2010 Eurobarometer Poll, the percentage of those polled who agreed with the statement “you don’t believe there is any sort of spirit, God or life force” varied from: France (40%), Czech Republic (37%), Sweden (34%), Netherlands (30%), and Estonia (29%), down to Poland (5%), Greece (4%), Cyprus (3%), Malta (2%), and Romania (1%), with the European Union as a whole at 20%.[28] In a 2012 Eurobarometer poll on discrimination in the European Union, 16% of those polled considered themselves non believers/agnostics and 7% considered themselves atheists.[214] According to the Australian Bureau of Statistics, 22% of Australians have “no religion”, a category that includes atheists.[215]

According to a Pew Research Center survey in 2012 religiously unaffiliated (including agnostics and atheists) make up about 18% of Europeans.[216] According to the same survey, the religiously unaffiliated are the majority of the population only in two European countries: Czech Republic (75%) and Estonia (60%).[216] There are another four countries where the unaffiliated make up a majority of the population: North Korea (71%), Japan (57%), Hong Kong (56%), and China (52%).[216]

In the US, there was a 1% to 5% increase in self-reported atheism from 2005 to 2012, and a larger drop in those who self-identified as “religious”, down by 13%, from 73% to 60%.[217] According to the World Values Survey, 4.4% of Americans self-identified as atheists in 2014.[218] However, the same survey showed that 11.1% of all respondents stated “no” when asked if they believed in God.[218] In 1984, these same figures were 1.1% and 2.2%, respectively. According to a 2015 report by the Pew Research Center, 3.1% of the US adult population identify as atheist, up from 1.6% in 2007, and within the religiously unaffiliated (or “no religion”) demographic, atheists made up 13.6%.[219] According to the 2015 General Sociological Survey the number of atheists and agnostics in the US has remained relatively flat in the past 23 years since in 1991 only 2% identified as atheist and 4% identified as agnostic and in 2014 only 3% identified as atheists and 5% identified as agnostics.[220]

A study noted positive correlations between levels of education and secularism, including atheism, in America.[87] According to evolutionary psychologist Nigel Barber, atheism blossoms in places where most people feel economically secure, particularly in the social democracies of Europe, as there is less uncertainty about the future with extensive social safety nets and better health care resulting in a greater quality of life and higher life expectancy. By contrast, in underdeveloped countries, there are virtually no atheists.[221] In a 2008 study, researchers found intelligence to be negatively related to religious belief in Europe and the United States. In a sample of 137 countries, the correlation between national IQ and disbelief in God was found to be 0.60.[222]

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Atheism (derived from the Ancient Greek atheos meaning “without gods; godless; secular; denying or disdaining the gods, especially officially sanctioned gods”[1]) is the absence or rejection of the belief that deities exist. The English term was used at least as early as the sixteenth century and atheistic ideas and their influence have a longer history. Over the centuries, atheists have supported their lack of belief in gods through a variety of avenues, including scientific, philosophical and ideological notions.

Philosophical atheist thought began to appear in Europe and Asia in the sixth or fifth century BCE. Will Durant explains that certain pygmy tribes found in Africa were observed to have no identifiable cults or rites. There were no totems, no deities, and no spirits. Their dead were buried without special ceremonies or accompanying items and received no further attention. They even appeared to lack simple superstitions, according to travelers’ reports.[citation needed] The Vedas of Ceylon[clarification needed] only admitted the possibility that deities might exist, but went no further. Neither prayers nor sacrifices were suggested in any way.[citation needed]

In the East, a contemplative life not centered on the idea of deities began in the sixth century BCE with the rise of Jainism, Buddhism, and certain sects of Hinduism in India, and of Taoism in China. These religions claim to offer a philosophic and salvific path not involving on deity worship. Deities are not seen as necessary to the salvific goal of the early Buddhist tradition, their reality is explicitly questioned and refuted there is a fundamental incompatibility between the notion of gods and basic Buddhist principles.[2]

Within the astika (“orthodox”) schools of Hindu philosophy, the Samkhya and the early Mimamsa school did not accept a creator-deity in their respective systems.

The principal text of the Samkhya school, the Samkhya Karika, was written by Ishvara Krishna in the fourth century CE, by which time it was already a dominant Hindu school. The origins of the school are much older and are lost in legend. The school was both dualistic and atheistic. They believed in a dual existence of Prakriti (“nature”) and Purusha (“spirit”) and had no place for an Ishvara (“God”) in its system, arguing that the existence of Ishvara cannot be proved and hence cannot be admitted to exist. The school dominated Hindu philosophy in its day, but declined after the tenth century, although commentaries were still being written as late as the sixteenth century.

The foundational text for the Mimamsa school is the Purva Mimamsa Sutras of Jaimini (c. third to first century BCE). The school reached its height c. 700 CE, and for some time in the Early Middle Ages exerted near-dominant influence on learned Hindu thought. The Mimamsa school saw their primary enquiry was into the nature of dharma based on close interpretation of the Vedas. Its core tenets were ritualism (orthopraxy), anti-asceticism and anti-mysticism. The early Mimamsakas believed in an adrishta (“unseen”) that is the result of performing karmas (“works”) and saw no need for an Ishvara (“God”) in their system. Mimamsa persists in some subschools of Hinduism today.

Jains see their tradition as eternal. Organized Jainism can be dated back to Parshva who lived in the ninth century BCE, and, more reliably, to Mahavira, a teacher of the sixth century BCE, and a contemporary of the Buddha. Jainism is a dualistic religion with the universe made up of matter and souls. The universe, and the matter and souls within it, is eternal and uncreated, and there is no omnipotent creator deity in Jainism. There are, however, “gods” and other spirits who exist within the universe and Jains believe that the soul can attain “godhood”, however none of these supernatural beings exercise any sort of creative activity or have the capacity or ability to intervene in answers to prayers.

The thoroughly materialistic and anti-religious philosophical Crvka school that originated in India with the Brhaspatya-stras (final centuries BCE) is probably the most explicitly atheist school of philosophy in the region. The school grew out of the generic skepticism in the Mauryan period. Already in the sixth century BCE, Ajita Kesakambalin, was quoted in Pali scriptures by the Buddhists with whom he was debating, teaching that “with the break-up of the body, the wise and the foolish alike are annihilated, destroyed. They do not exist after death.”[3] Crvkan philosophy is now known principally from its Astika and Buddhist opponents. The proper aim of a Crvkan, according to these sources, was to live a prosperous, happy, productive life in this world. The Tattvopaplavasimha of Jayarashi Bhatta (c. eighth century) is sometimes cited as a surviving Carvaka text. The school appears to have died out sometime around the fifteenth century.

The non-adherence[4] to the notion of a supreme deity or a prime mover is seen by many as a key distinction between Buddhism and other religions. While Buddhist traditions do not deny the existence of supernatural beings (many are discussed in Buddhist scripture), it does not ascribe powers, in the typical Western sense, for creation, salvation or judgement, to the “gods”, however, praying to enlightened deities is sometimes seen as leading to some degree of spiritual merit.

Buddhists accept the existence of beings in higher realms, known as devas, but they, like humans, are said to be suffering in samsara,[5] and not particularly wiser than we are. In fact the Buddha is often portrayed as a teacher of the deities,[6] and superior to them.[7] Despite this they do have some enlightened Devas in the path of buddhahood.

In later Mahayana literature, however, the idea of an eternal, all-pervading, all-knowing, immaculate, uncreated, and deathless Ground of Being (the dharmadhatu, inherently linked to the sattvadhatu, the realm of beings), which is the Awakened Mind (bodhicitta) or dharmakaya (“body of Truth”) of the Buddha himself, is attributed to the Buddha in a number of Mahayana sutras, and is found in various tantras as well. In some Mahayana texts, such a principle is occasionally presented as manifesting in a more personalised form as a primordial Buddha, such as Samantabhadra, Vajradhara, Vairochana, Amitabha, and Adi-Buddha, among others.

In western Classical antiquity, theism was the fundamental belief that supported the legitimacy of the state (Polis, later the Roman Empire). Historically, any person who did not believe in any deity supported by the state was fair game to accusations of atheism, a capital crime. For political reasons, Socrates in Athens (399 BCE) was accused of being atheos (“refusing to acknowledge the gods recognized by the state”). Christians in Rome were also considered subversive to the state religion and persecuted as atheists.[8] Thus, charges of atheism, meaning the subversion of religion, were often used similarly to charges of heresy and impiety as a political tool to eliminate enemies.

The roots of Western philosophy began in the Greek world in the sixth century BCE. The first Hellenic philosophers were not atheists, but they attempted to explain the world in terms of the processes of nature instead of by mythological accounts. Thus lightning was the result of “wind breaking out and parting the clouds”,[9] and earthquakes occurred when “the earth is considerably altered by heating and cooling”.[10] The early philosophers often criticised traditional religious notions. Xenophanes (sixth century BCE) famously said that if cows and horses had hands, “then horses would draw the forms of gods like horses, and cows like cows”.[11] Another philosopher, Anaxagoras (fifth century BCE), claimed that the Sun was “a fiery mass, larger than the Peloponnese”; a charge of impiety was brought against him, and he was forced to flee Athens.[12]

The first fully materialistic philosophy was produced by the atomists Leucippus and Democritus (fifth century BCE), who attempted to explain the formation and development of the world in terms of the chance movements of atoms moving in infinite space.

Euripides (480406 BCE), in his play Bellerophon, had the eponymous main character say:

Doth some one say that there be gods above? There are not; no, there are not. Let no fool, Led by the old false fable, thus deceive you.[13]

Aristophanes (ca. 448380 BCE), known for his satirical style, wrote in his play The Knights: “Shrines! Shrines! Surely you don’t believe in the gods. What’s your argument? Where’s your proof?”[14]

In the fifth century BCE the Sophists began to question many of the traditional assumptions of Greek culture. Prodicus of Ceos was said to have believed that “it was the things which were serviceable to human life that had been regarded as gods,”[15] and Protagoras stated at the beginning of a book that “With regard to the gods I am unable to say either that they exist or do not exist.”[16]

Diagoras of Melos (fifth century BCE) is known as the “first atheist”. He blasphemed by making public the Eleusinian Mysteries and discouraging people from being initiated.[17] Somewhat later (c. 300 BCE), the Cyrenaic philosopher Theodorus of Cyrene is supposed to have denied that gods exist, and wrote a book On the Gods expounding his views.

Euhemerus (c. 330260 BCE) published his view that the gods were only the deified rulers, conquerors, and founders of the past, and that their cults and religions were in essence the continuation of vanished kingdoms and earlier political structures.[18] Although Euhemerus was later criticized for having “spread atheism over the whole inhabited earth by obliterating the gods”,[19] his worldview was not atheist in a strict and theoretical sense, because he differentiated that the primordial deities were “eternal and imperishable”.[20] Some historians have argued that he merely aimed at reinventing the old religions in the light of the beginning of deification of political rulers such as Alexander the Great.[21] Euhemerus’ work was translated into Latin by Ennius, possibly to mythographically pave the way for the planned divinization of Scipio Africanus in Rome.[22]

Also important in the history of atheism was Epicurus (c. 300 BCE). Drawing on the ideas of Democritus and the Atomists, he espoused a materialistic philosophy where the universe was governed by the laws of chance without the need for divine intervention. Although he stated that deities existed, he believed that they were uninterested in human existence. The aim of the Epicureans was to attain peace of mind by exposing fear of divine wrath as irrational.

One of the most eloquent expressions of Epicurean thought is Lucretius’ On the Nature of Things (first century BCE) in which he held that gods exist but argued that religious fear was one of the chief causes of human unhappiness and that the gods did not involve themselves in the world.[23][24]

The Epicureans also denied the existence of an afterlife.[25]

Epicureans were not persecuted, but their teachings were controversial, and were harshly attacked by the mainstream schools of Stoicism and Neoplatonism. The movement remained marginal, and gradually died out at the end of the Roman Empire.

In medieval Islam, Muslim scholars recognized the idea of atheism, and frequently attacked unbelievers, although they were unable to name any atheists.[26] When individuals were accused of atheism, they were usually viewed as heretics rather than proponents of atheism.[27] However, outspoken rationalists and atheists existed, one notable figure being the ninth-century scholar Ibn al-Rawandi, who criticized the notion of religious prophecy, including that of Muhammad, and maintained that religious dogmas were not acceptable to reason and must be rejected.[28] Other critics of religion in the Islamic world include the physician and philosopher Abu Bakr al-Razi (865925), the poet Al-Maarri (9731057), and the scholar Abu Isa al-Warraq (fl. 7th century). Al-Maarri, for example, wrote and taught that religion itself was a “fable invented by the ancients”[29] and that humans were “of two sorts: those with brains, but no religion, and those with religion, but no brains.”[30]

In the European Middle Ages, no clear expression of atheism is known. The titular character of the Icelandic saga Hrafnkell, written in the late thirteenth century, says that I think it is folly to have faith in gods. After his temple to Freyr is burnt and he is enslaved, he vows never to perform another sacrifice, a position described in the sagas as golauss “godless”. Jacob Grimm in his Teutonic Mythology observes that

It is remarkable that Old Norse legend occasionally mentions certain men who, turning away in utter disgust and doubt from the heathen faith, placed their reliance on their own strength and virtue. Thus in the Slar lio 17 we read of Vbogi and Rdey sik au tru, “in themselves they trusted”,[31]

citing several other examples, including two kings.

In Christian Europe, people were persecuted for heresy, especially in countries where the Inquisition was active. Thomas Aquinas’ five proofs of God’s existence and Anselm’s ontological argument implicitly acknowledged the validity of the question about God’s existence.[original research?]Frederick Copleston, however, explains that Thomas laid out his proofs not to counter atheism, but to address certain early Christian writers such as John of Damascus, who asserted that knowledge of God’s existence was naturally innate in man, based on his natural desire for happiness.[32] Thomas stated that although there is desire for happiness which forms the basis for a proof of God’s existence in man, further reflection is required to understand that this desire is only fulfilled in God, not for example in wealth or sensual pleasure.[32]

The charge of atheism was used to attack political or religious opponents. Pope Boniface VIII, because he insisted on the political supremacy of the church, was accused by his enemies after his death of holding (unlikely) atheistic positions such as “neither believing in the immortality nor incorruptibility of the soul, nor in a life to come.”[33]

During the time of the Renaissance and the Reformation, criticism of the religious establishment became more frequent in predominantly Christian countries, but did not amount to atheism, per se.

The term athisme was coined in France in the sixteenth century. The word “atheist” appears in English books at least as early as 1566.[34] The concept of atheism re-emerged initially as a reaction to the intellectual and religious turmoil of the Age of Enlightenment and the Reformation as a charge used by those who saw the denial of god and godlessness in the controversial positions being put forward by others. During the sixteenth and seventeenth centuries, the word ‘atheist’ was used exclusively as an insult; nobody wanted to be regarded as an atheist.[35] Although one overtly atheistic compendium known as the Theophrastus redivivus was published by an anonymous author in the seventeenth century, atheism was an epithet implying a lack of moral restraint.[36]

According to Geoffrey Blainey, the Reformation in Europe had paved the way for atheists by attacking the authority of the Catholic Church, which in turn “quietly inspired other thinkers to attack the authority of the new Protestant churches”. Deism gained influence in France, Prussia and England, and proffered belief in a non-interventionist deity, but “while some deists were atheists in disguise, most were religious, and by today’s standards would be called true believers”. The scientific and mathematical discoveries of such as Copernicus, Newton and Descartes sketched a pattern of natural laws that lent weight to this new outlook[37] Blainey wrote that the Dutch philosopher Baruch Spinoza was “probably the first well known ‘semi-atheist’ to announce himself in a Christian land in the modern era”. Spinoza had been expelled from his synagogue for his protests against the teachings of its rabbis and for failing to attend Saturday services. He believed that God did not interfere in the running of the world, but rather that natural laws explained the workings of the universe. In 1661 he published his Short Treatise on God, but he was not a popular figure for the first century following his death: “An unbeliever was expected to be a rebel in almost everything and wicked in all his ways”, wrote Blainey, “but here was a virtuous one. He lived the good life and made his living in a useful way… It took courage to be a Spinoza or even one of his supporters. If a handful of scholars agreed with his writings, they did not so say in public.”[38]

How dangerous it was to be accused of being an atheist at this time is illustrated by the examples of tienne Dolet who was strangled and burned in 1546, and Giulio Cesare Vanini who received a similar fate in 1619. In 1689 the Polish nobleman Kazimierz yszczyski, who had denied the existence of God in his philosophical treatise De non existentia Dei, was imprisoned unlawfully; despite Warsaw Confederation tradition and king Sobieski’s intercession, yszczyski was condemned to death for atheism and beheaded in Warsaw after his tongue was pulled out with a burning iron and his hands slowly burned. Similarly in 1766, the French nobleman Franois-Jean de la Barre, was tortured, beheaded, and his body burned for alleged vandalism of a crucifix, a case that became a cause clbre because Voltaire tried unsuccessfully to have the judgment reversed.

The English philosopher Thomas Hobbes (15881679) was also accused of atheism, but he denied it. His theism was unusual, in that he held god to be material. Even earlier, the British playwright and poet Christopher Marlowe (15631593) was accused of atheism when a tract denying the divinity of Christ was found in his home. Before he could finish defending himself against the charge, Marlowe was murdered.

In early modern times, the first explicit atheist known by name was the German-languaged Danish critic of religion Matthias Knutzen (1646after 1674), who published three atheist writings in 1674.[39]

Kazimierz yszczyski, a Polish philosopher (executed in 1689, following a hasty and controversial trial pressed by the Catholic Church) demonstrated strong atheism in his work De non existentia Dei:

II – the Man is a creator of God, and God is a concept and creation of a Man. Hence the people are architects and engineers of God and God is not a true being, but a being existing only within mind, being chimaeric by its nature, because a God and a chimaera are the same.[40]

IV – simple folk are cheated by the more cunning with the fabrication of God for their own oppression; whereas the same oppression is shielded by the folk in a way, that if the wise attempted to free them by the truth, they would be quelled by the very people.[41][42]

While not gaining converts from large portions of the population, versions of deism became influential in certain intellectual circles. Jean Jacques Rousseau challenged the Christian notion that human beings had been tainted by sin since the Garden of Eden, and instead proposed that humans were originally good, only later to be corrupted by civilisation. The influential figure of Voltaire, spread deistic notions of to a wide audience. “After the French Revolution and its outbursts of atheism, Voltaire was widely condemned as one of the causes”, wrote Blainey, “Nonetheless, his writings did concede that fear of God was an essential policeman in a disorderly world: ‘If God did not exist, it would be necessary to invent him’, wrote Voltaire”.[43]

Arguably the first book in modern times solely dedicated to promoting atheism was written by French Catholic priest Jean Meslier (16641729), whose posthumously published lengthy philosophical essay (part of the original title: Thoughts and Feelings of Jean Meslier … Clear and Evident Demonstrations of the Vanity and Falsity of All the Religions of the World[44]) rejects the concept of god (both in the Christian and also in the Deistic sense), the soul, miracles and the discipline of theology.[45] Philosopher Michel Onfray states that Meslier’s work marks the beginning of “the history of true atheism”.[45]

By the 1770s, atheism in some predominantly Christian countries was ceasing to be a dangerous accusation that required denial, and was evolving into a position openly avowed by some. The first open denial of the existence of God and avowal of atheism since classical times may be that of Baron d’Holbach (17231789) in his 1770 work, The System of Nature. D’Holbach was a Parisian social figure who conducted a famous salon widely attended by many intellectual notables of the day, including Denis Diderot, Jean-Jacques Rousseau, David Hume, Adam Smith, and Benjamin Franklin. Nevertheless, his book was published under a pseudonym, and was banned and publicly burned by the Executioner.[citation needed] Diderot, one of the Enlightenment’s most prominent philosophes, and editor-in-chief of the Encyclopdie, which sought to challenge religious, particularly Catholic, dogma said, “Reason is to the estimation of the philosophe what grace is to the Christian”, he wrote. “Grace determines the Christian’s action; reason the philosophe’s”.[46] Diderot was briefly imprisoned for his writing, some of which was banned and burned.[citation needed]

In Scotland, David Hume produced a six volume history of England in 1754, which gave little attention to God. He implied that if God existed he was impotent in the face of European upheaval. Hume ridiculed miracles, but walked a careful line so as to avoid being too dismissive of Christianity. With Hume’s presence, Edinburgh gained a reputation as a “haven of atheism”, alarming many ordinary Britons.[47]

The culte de la Raison developed during the uncertain period 179294 (Years I and III of the Revolution), following the September Massacres, when Revolutionary France was ripe with fears of internal and foreign enemies. Several Parisian churches were transformed into Temples of Reason, notably the Church of Saint-Paul Saint-Louis in the Marais. The churches were closed in May 1793 and more securely, 24 November 1793, when the Catholic Mass was forbidden.

Blainey wrote that “atheism seized the pedestal in revolutionary France in the 1790s. The secular symbols replaced the cross. In the cathedral of Notre Dame the altar, the holy place, was converted into a monument to Reason…” During the Terror of 1792-93, France’s Christian calendar was abolished, monasteries, convents and church properties were seized and monks and nuns expelled. Historic churches were dismantled.[48] The Cult of Reason was a creed based on atheism devised during the French Revolution by Jacques Hbert, Pierre Gaspard Chaumette, and their supporters. It was stopped by Maximilien Robespierre, a Deist, who instituted the Cult of the Supreme Being.[49] Both cults were the outcome of the “de-Christianization” of French society during the Revolution and part of the Reign of Terror.

The Cult of Reason was celebrated in a carnival atmosphere of parades, ransacking of churches, ceremonious iconoclasm, in which religious and royal images were defaced, and ceremonies which substituted the “martyrs of the Revolution” for Christian martyrs. The earliest public demonstrations took place en province, outside Paris, notably by Hbertists in Lyon, but took a further radical turn with the Fte de la Libert (“Festival of Liberty”) at Notre Dame de Paris, 10 November (20 Brumaire) 1793, in ceremonies devised and organised by Pierre-Gaspard Chaumette.

The pamphlet Answer to Dr. Priestley’s Letters to a Philosophical Unbeliever (1782) is considered to be the first published declaration of atheism in Britain plausibly the first in English (as distinct from covert or cryptically atheist works). The otherwise unknown ‘William Hammon’ (possibly a pseudonym) signed the preface and postscript as editor of the work, and the anonymous main text is attributed to Matthew Turner (d. 1788?), a Liverpool physician who may have known Priestley. Historian of atheism David Berman has argued strongly for Turner’s authorship, but also suggested that there may have been two authors.[50]

The French Revolution of 1789 catapulted atheistic thought into political notability in some Western countries, and opened the way for the nineteenth century movements of Rationalism, Freethought, and Liberalism. Born in 1792, Romantic poet Percy Bysshe Shelley, a child of the Age of Enlightenment, was expelled from England’s Oxford University in 1811 for submitting to the Dean an anonymous pamphlet that he wrote entitled, The Necessity of Atheism. This pamphlet is considered by scholars as the first atheistic ideas published in the English language. An early atheistic influence in Germany was The Essence of Christianity by Ludwig Feuerbach (18041872). He influenced other German nineteenth century atheistic thinkers like Karl Marx, Max Stirner, Arthur Schopenhauer (17881860), and Friedrich Nietzsche (18441900).

The freethinker Charles Bradlaugh (18331891) was repeatedly elected to the British Parliament, but was not allowed to take his seat after his request to affirm rather than take the religious oath was turned down (he then offered to take the oath, but this too was denied him). After Bradlaugh was re-elected for the fourth time, a new Speaker allowed Bradlaugh to take the oath and permitted no objections.[51] He became the first outspoken atheist to sit in Parliament, where he participated in amending the Oaths Act.[52]

In 1844, Karl Marx (18181883), an atheistic political economist, wrote in his Contribution to the Critique of Hegel’s Philosophy of Right: “Religious suffering is, at one and the same time, the expression of real suffering and a protest against real suffering. Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.” Marx believed that people turn to religion in order to dull the pain caused by the reality of social situations; that is, Marx suggests religion is an attempt at transcending the material state of affairs in a society the pain of class oppression by effectively creating a dream world, rendering the religious believer amenable to social control and exploitation in this world while they hope for relief and justice in life after death. In the same essay, Marx states, “…[m]an creates religion, religion does not create man…”[53]

Friedrich Nietzsche, a prominent nineteenth century philosopher, is well known for coining the aphorism “God is dead” (German: “Gott ist tot”); incidentally the phrase was not spoken by Nietzsche directly, but was used as a dialogue for the characters in his works. Nietzsche argued that Christian theism as a belief system had been a moral foundation of the Western world, and that the rejection and collapse of this foundation as a result of modern thinking (the death of God) would naturally cause a rise in nihilism or the lack of values. While Nietzsche was staunchly atheistic, he was also concerned about the negative effects of nihilism on humanity. As such, he called for a re-evaluation of old values and a creation of new ones, hoping that in doing so humans would achieve a higher state he labeled the Overman.

Atheist feminism also began in the nineteenth century. Atheist feminism is a movement that advocates feminism within atheism.[54] Atheist feminists also oppose religion as a main source of female oppression and inequality, believing that the majority of the religions are sexist and oppressive to women.[55]

Atheism in the twentieth century found recognition in a wide variety of other, broader philosophies in the Western tradition, such as existentialism, Objectivism,[56]secular humanism, nihilism, logical positivism, Marxism, anarchism, feminism,[57] and the general scientific and rationalist movement. Neopositivism and analytical philosophy discarded classical rationalism and metaphysics in favor of strict empiricism and epistemological nominalism. Proponents such as Bertrand Russell emphatically rejected belief in God. In his early work, Ludwig Wittgenstein attempted to separate metaphysical and supernatural language from rational discourse. H. L. Mencken sought to debunk both the idea that science and religion are compatible, and the idea that science is a dogmatic belief system just like any religion.[58]

A. J. Ayer asserted the unverifiability and meaninglessness of religious statements, citing his adherence to the empirical sciences. The structuralism of Lvi-Strauss sourced religious language to the human subconscious, denying its transcendental meaning. J. N. Findlay and J. J. C. Smart argued that the existence of God is not logically necessary. Naturalists and materialists such as John Dewey considered the natural world to be the basis of everything, denying the existence of God or immortality.[59][60]

The historian Geoffrey Blainey wrote that during the twentieth century, atheists in Western societies became more active and even militant, though they often “relied essentially on arguments used by numerous radical Christians since at least the eighteenth century”. They rejected the idea of an interventionist God, and said that Christianity promoted war and violence, though “the most ruthless leaders in the Second World War were atheists and secularists who were intensely hostile to both Judaism and Christianity” and “Later massive atrocities were committed in the East by those ardent atheists, Pol Pot and Mao Zedong”. Some scientists were meanwhile articulating a view that as the world becomes more educated, religion will be superseded.[61]

Often, the state’s opposition to religion took more violent forms; Aleksandr Solzhenitsyn documents widespread persecution, imprisonments and torture of believers, in his seminal work The Gulag Archipelago. Consequently, religious organizations, such as the Catholic Church, were among the most stringent opponents of communist regimes. In some cases, the initial strict measures of control and opposition to religious activity were gradually relaxed in communist states. Pope Pius XI followed his encyclicals challenging the new right-wing creeds of Italian Fascism, (Non abbiamo bisogno 1931); and Nazism (Mit brennender Sorge, 1937); with a denunciation of atheist Communism in Divini redemptoris (1937).[62]

The Russian Orthodox Church, for centuries the strongest of all Orthodox Churches, was suppressed by Russia’s atheists.[63] In 1922, the Soviet regime arrested the Patriarch of the Russian Orthodox Church.[64] The Soviet leaders Vladimir Lenin and Joseph Stalin energetically pursued the persecution of the Church through the 1920s and 1930s. Lenin wrote that every religious idea and every idea of God “is unutterable vileness… of the most dangerous kind, ‘contagion of the most abominable kind”.[65] Many priests were killed and imprisoned. Thousands of churches were closed, some turned into hospitals. In 1925 the government founded the League of Militant Atheists to intensify the persecution. The regime only relented in its persecution following the Nazi invasion of the Soviet Union in 1941.[63] Bullock wrote that “A Marxist regime was ‘godless’ by definition, and Stalin had mocked religious belief since his days in the Tiflis seminary”. His assault on the Russian peasantry, wrote Bullock, “had been as much an attack on their traditional religion as on their individual holdings, and the defence of it had played a major part in arousing peasant resistance… “.[66] In Divini Redemptoris, Pius XI said that atheistic Communism being led by Moscow was aimed at “upsetting the social order and at undermining the very foundations of Christian civilization”:[67]

The central figure in Italian Fascism was the atheist Benito Mussolini.[68] In his early career, Mussolini was a strident opponent of the Church, and the first Fascist programme, written in 1919, had called for the secularization of Church property in Italy.[69] More pragmatic than his German ally Adolf Hitler, Mussolini later moderated his stance, and in office, permitted the teaching of religion in schools and came to terms with the Papacy in the Lateran Treaty.[68] Nevertheless, Non abbiamo bisogno condemned his Fascist movement’s “pagan worship of the State” and “revolution which snatches the young from the Church and from Jesus Christ, and which inculcates in its own young people hatred, violence and irreverence.”[70]

As noted by Steigmann-Gall, in October 1928 Hitler had publicly declared: “We tolerate no one in our ranks who attacks the ideas of Christianity … in fact our movement is Christian.”[71] In contrast to that, Richard J. Evans wrote that “Hitler emphasised again and again his belief that Nazism was a secular ideology founded on modern science. Science, he declared, would easily destroy the last remaining vestiges of superstition [-] ‘In the long run’, [Hitler] concluded in July 1941, ‘National Socialism and religion will no longer be able to exist together’ […] The ideal solution would be to leave the religions to devour themselves, without persecutions.’ “[72][73] On Steigmann-Gall’s research, Evans says, “Far from being uniformly anti-Christian, Nazism contained a wide variety of religious beliefs, and Steigmann-Gall has performed a valuable service in providing a meticulously documented account of them in all their bizarre variety.”[71]

The majority of Nazis did not leave their churches. Evans wrote that, by 1939, 95% of Germans still called themselves Protestant or Catholic, while 3.5% were gottglubig and 1.5% atheist. Most in these latter categories were “convinced Nazis who had left their Church at the behest of the Party, which had been trying since the mid 1930s to reduce the influence of Christianity in society”.[74] The majority of the three million Nazi Party members continued to pay their church taxes and register as either Roman Catholic or Evangelical Protestant Christians.[75] “Gottglubig” (lit. “believers in god”) were a non-denominational nazified outlook on god beliefs, often described as predominantly based on creationist and deistic views.[76]Heinrich Himmler, who himself was fascinated with Germanic paganism[citation needed], was a strong promoter of the gottglubig movement and didn’t allow atheists into the SS, arguing that their “refusal to acknowledge higher powers” would be a “potential source of indiscipline”.[77]

Across Eastern Europe following World War Two, the parts of the Nazi Empire conquered by the Soviet Red Army, and Yugsolavia became one party Communist states, which, like the Soviet Union, were antipathetic to religion. Persecutions of religious leaders followed.[78][79] The Soviet Union ended its truce against the Russian Orthodox Church, and extended its persecutions to the newly Communist Eastern block: “In Poland, Hungary, Lithuania and other Eastern European countries, Catholic leaders who were unwilling to be silent were denounced, publicly humiliated or imprisoned by the Communists. Leaders of the national Orthodox Churches in Romania and Bulgaria had to be cautious and submissive”, wrote Blainey.[63] While the churches were generally not as severely treated at they had been in the USSR, nearly all their schools and many of their churches were closed, and they lost their formally prominent roles in public life. Children were taught atheism, and clergy were imprisoned by the thousands.[80]

Albania under Enver Hoxha became, in 1967, the first (and to date only) formally declared atheist state,[81] going far beyond what most other countries had attempted completely prohibiting religious observance, and systematically repressing and persecuting adherents. The right to religious practice was restored in the fall of communism in 1991.

Further post-war communist victories in the East saw religion purged by atheist regimes across China, North Korea and much of Indo-China.[80] In 1949, China became a Communist state under the leadership of Mao Zedong’s Communist Party of China. China itself had been a cradle of religious thought since ancient times, being the birthplace of Confucianism and Daoism, and Buddhists having arrived in the first century AD. Under Mao, China became officially atheist, and though some religious practices were permitted to continue under State supervision, religious groups deemed a threat to order have been suppressed – as with Tibetan Buddhism from 1959 and Falun Gong in recent years. Today around two-fifths of the population claim to be nonreligious or atheist.[82] Religious schools and social institutions were closed, foreign missionaries expelled, and local religious practices discouraged.[80] During the Cultural Revolution, Mao instigated “struggles” against the Four Olds: “old ideas, customs, culture, and habits of mind”.[83] In 1999, the Communist Party launched a three-year drive to promote atheism in Tibet, saying intensifying propaganda on atheism is “especially important for Tibet because atheism plays an extremely important role in promoting economic construction, social advancement and socialist spiritual civilization in the region”.[84]

In India, E. V. Ramasami Naicker (Periyar), a prominent atheist leader, fought against Hinduism and the Brahmins for discriminating and dividing people in the name of caste and religion.[85] This was highlighted in 1956 when he made the Hindu god Rama wear a garland made of slippers and made antitheistic statements.[86]

During this period, Christianity in the United States retained its popular appeal, and, wrote Blainey, the country “was the guardian, militarily of the “free world” and the defender of its religion in the face of militant communism”.[87] During the Cold War, wrote Thomas Aiello the United States often characterized its opponents as “godless communists”, which tended to reinforce the view that atheists were unreliable and unpatriotic.[88] Against this background, the words “under God” were inserted into the pledge of allegiance in 1954,[89] and the national motto was changed from E Pluribus Unum to In God We Trust in 1956. However, there were some prominent atheist activists active at this time. Atheist Vashti McCollum was the plaintiff in a landmark 1948 Supreme Court case (McCollum v. Board of Education) that struck down religious education in U.S. public schools.[90][91]Madalyn Murray O’Hair was perhaps one of the most influential American atheists; she brought forth the 1963 Supreme Court case Murray v. Curlett which banned compulsory prayer in public schools.[92] Also in 1963 she founded American Atheists, an organization dedicated to defending the civil liberties of atheists and advocating for the complete separation of church and state.[93][94]

The early twenty-first century has continued to see secularism and atheism promoted in the Western world, with the general consensus being that the number of people not affiliated with any particular religion has increased.[95][96] This has been assisted by non-profit organizations such as the Freedom From Religion Foundation in the United States (co-founded by Anne Nicol Gaylor and her daughter, Annie Laurie Gaylor, in 1976 and incorporated nationally in 1978, it promotes the separation of church and state[97][98]), and the Brights movement, which aims to promote public understanding and acknowledgment of the naturalistic worldview.[99] In addition, a large number of accessible antitheist and secularist books, many of which have become bestsellers, have been published by authors such as Sam Harris, Richard Dawkins, Daniel Dennett, Christopher Hitchens, and Victor J. Stenger.[100][101] This period has seen the rise of the New Atheism movement, a label that has been applied, sometimes pejoratively, to outspoken critics of theism.[102] Richard Dawkins also propounds a more visible form of atheist activism which he light-heartedly describes as ‘militant atheism’.[103]

Atheist feminism has also become more prominent in the 2010s. In 2012 the first “Women in Secularism” conference was held.[104] Also, Secular Woman was founded on June 28, 2012 as the first national American organization focused on nonreligious women. The mission of Secular Woman is to amplify the voice, presence, and influence of non-religious women. The atheist feminist movement has also become increasingly focused on fighting sexism and sexual harassment within the atheist movement itself.

In 2013 the first atheist monument on American government property was unveiled at the Bradford County Courthouse in Florida; it is a 1,500-pound granite bench and plinth inscribed with quotes by Thomas Jefferson, Benjamin Franklin, and Madalyn Murray O’Hair.[105][106]

In 2015, Madison, Wisconsin’s common council amended their city’s equal opportunity ordinance, adding atheism as a protected class in the areas of employment, housing, and public accommodations.[107] This makes Madison the first city in America to pass an ordinance protecting atheists.[107]

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Twenty-fourth Amendment to the United States Constitution …

 Fourth Amendment  Comments Off on Twenty-fourth Amendment to the United States Constitution …
Jan 192016
 

The Twenty-fourth Amendment (Amendment XXIV) of the United States Constitution prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax. The amendment was proposed by Congress to the states on August 27, 1962, and was ratified by the states on January 23, 1964.

Southern states of the former Confederacy adopted poll taxes in laws of the late 19th century and new constitutions from 1890 to 1908, after the Democratic Party had generally regained control of state legislatures decades after the end of Reconstruction, as a measure to prevent African Americans and often poor whites from voting. Use of the poll taxes by states was held to be constitutional by the Supreme Court of the United States in the 1937 decision Breedlove v. Suttles.

When the 24th Amendment was ratified in 1964, five states still retained a poll tax: Virginia, Alabama, Texas, Arkansas, and Mississippi. The amendment prohibited requiring a poll tax for voters in federal elections. But it was not until 1966 that the U.S. Supreme Court ruled 63 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment. Subsequent litigation related to potential discriminatory effects of voter registration requirements has generally been based on application of this clause.

Poll tax

Cumulative poll tax (missed poll taxes from prior years must also be paid to vote)

No poll tax

Southern states adopted the poll tax as a requirement for voting as part of a series of laws intended to marginalize black Americans from politics so far as practicable without violating the Fifteenth Amendment. This required that voting not be limited by “race, color, or previous condition of servitude.” All voters were required to pay the poll tax, but in practice it most affected the poor. Notably this impacted both African Americans and poor white voters, some of whom had voted with Populist and Fusionist candidates in the late 19th century, temporarily disturbing Democratic rule. Proponents of the poll tax downplayed this aspect and assured white voters they would not be affected. Passage of poll taxes began in earnest in the 1890s, as Democrats wanted to prevent another Populist-Republican coalition. Despite election violence and fraud, African Americans were still winning numerous local seats. By 1902, all eleven states of the former Confederacy had enacted a poll tax, many within new constitutions that contained other provisions to reduce voter lists, such as literacy or comprehension tests. The poll tax was used together with grandfather clauses and the “white primary”, and threats of violence. For example, potential voters had to be “assessed” in Arkansas, and blacks were utterly ignored in the assessment.[2]

From 19001937, such use of the poll tax was nearly ignored by the federal government. Some state-level initiatives repealed it. The poll tax survived a legal challenge in the 1937 Supreme Court case Breedlove v. Suttles, which ruled that “[The] privilege of voting is not derived from the United States, but is conferred by the state and, save as restrained by the Fifteenth and Nineteenth Amendments and other provisions of the Federal Constitution, the state may condition suffrage as it deems appropriate.”[3]

The issue remained prominent, as most African Americans in the South were disenfranchised. President Franklin D. Roosevelt spoke out against the tax. He publicly called it “a remnant of the Revolutionary period” that the country had moved past. However, Roosevelt’s favored liberal Democrats lost in the 1938 primaries to the reigning conservative Southern Democrats, and he backed off the issue. He felt that he needed Southern Democratic votes to pass New Deal programs and did not want to further antagonize them.[4] Still, efforts at the Congressional level to abolish the poll tax continued. A 1939 bill to abolish the poll tax in federal elections was tied up by the Southern Block, lawmakers whose long tenure in office from a one-party region gave them seniority and command of numerous important committee chairmanships. A discharge petition was able to force the bill to be considered, and the House passed the bill 25484.[5] However, the bill was unable to defeat a filibuster in the Senate by Southern senators and a few Northern allies who valued the support of the powerful and senior Southern seats. This bill would be re-proposed in the next several Congresses. It came closest to passage during World War II, when opponents framed abolition as a means to help overseas soldiers vote. However, after learning that the US Supreme Court decision Smith v. Allwright (1944) banned use of the “white primary,” the Southern block refused to approve abolition of the poll tax.[6]

In 1946, the Senate came close to passing the bill. 24 Democrats and 15 Republicans approved an end to debate, while 7 non-southern Democrats and 7 Republicans joined with the 19 Southern Democrats in opposition. The result was a 39-33 vote in favor of the bill, but the filibuster required a two-thirds supermajority to break at the time; a 48-24 vote was required to pass the bill.[clarification needed] Those in favor of abolition of the poll tax considered a constitutional amendment after the 1946 defeat, but that idea did not advance either.[7]

The tenor of the debate changed in the 1940s. Southern politicians tried to shift the debate to Constitutional issue, but private correspondence indicates that black disenfranchisement was still the true concern. For instance, Mississippi Senator Theodore Bilbo declared, “If the poll tax bill passes, the next step will be an effort to remove the registration qualification, the educational qualification of Negroes. If that is done we will have no way of preventing the Negroes from voting.”[8] This fear explains why even Southern Senators from states that had abolished the poll tax still opposed the bill; they did not want to set a precedent that the federal government could interfere in state elections.

President Harry S. Truman established the President’s Committee on Civil Rights, which among other issues investigated the poll tax. Considering that opposition to federal poll tax regulation in 1948 was claimed as based on the Constitution, the Committee noted that a constitutional amendment might be the best way to proceed. Still, little occurred during the 1950s. Members of the anti-poll tax movement laid low during the anti-Communist frenzy of the period; some of the main proponents of poll tax abolition, such as Joseph Gelders and Vito Marcantonio, had been committed Marxists.[9]

President John F. Kennedy returned to this issue. His administration urged Congress to adopt and send such an amendment to the states for ratification. He considered the constitutional amendment the best way to avoid a filibuster, as the claim that federal abolition of the poll tax was unconstitutional would be moot. Still, some liberals opposed Kennedy’s action, feeling that an amendment would be too slow compared to legislation.[10]Spessard Holland, a conservative Democrat from Florida, introduced the amendment to the Senate. Holland opposed most civil rights legislation during his career,[11] and Kennedy’s gaining of his support helped splinter monolithic Southern opposition to the Amendment. Ratification of the amendment was relatively quick, taking slightly more than a year; it was rapidly ratified by state legislatures across the country from August 1962 to January 1964.

President Lyndon B. Johnson called the amendment a “triumph of liberty over restriction” and “a verification of people’s rights.”[12] States that maintained the poll tax were more reserved. Mississippi’s Attorney General, Joe Patterson, complained about the complexity of two sets of voters – those who paid their poll tax and could vote in all elections, and those who had not and could only vote in federal elections.[12] Additionally, non-payers of the poll tax could still be deterred by requirements that they register far in advance of the election and retain records of such registration.[13] States such as Alabama also exercised discrimination in the application of literacy tests.

Ratified amendment, 196264

Ratified amendment post-enactment, 1977, 1989, 2002, 2009

Rejected amendment

Didn’t ratify amendment

Congress proposed the Twenty-fourth Amendment on August 27, 1962.[14][15] The amendment was submitted to the states on September 24, 1962, after it passed with the requisite two-thirds majorities in the House and Senate.[12] The following states ratified the amendment:

Ratification was completed on January 23, 1964. The Georgia legislature did make a last-second attempt to be the 38th state to ratify. This was a surprise as “no Southern help could be expected”[13] for the amendment. The Georgia Senate quickly and unanimously passed it, but the House did not act in time.[12] Georgia’s ratification was apparently dropped after South Dakota’s ratification.

The amendment was subsequently ratified by the following states:

The amendment was specifically rejected by the following state:

The following states have not ratified the amendment:

Arkansas effectively repealed its poll tax for all elections with Amendment 51 to the Arkansas Constitution at the November 1964 general election, several months after this amendment was ratified. The poll-tax language was not completely stricken from its Constitution until Amendment 85 in 2008.[16] Of the five states originally affected by this amendment, Arkansas was the only one to repeal its poll tax; the other four retained their taxes until they were struck down in 1966 by the US Supreme Court decision in Harper v. Virginia Board of Elections (1966), which ruled poll taxes unconstitutional even for state elections. Federal district courts in Alabama and Texas, respectively, struck down their poll taxes less than two months before the Harper ruling was issued.

The state of Virginia accommodated the amendment by providing an “escape clause” to the poll tax. In lieu of paying the poll tax, a prospective voter could file paperwork to gain a certificate establishing a place of residence in Virginia. The papers would have to be filed six months in advance of voting and the voter had to provide a copy of certificate at the time of voting. This measure was expected to decrease the number of legal voters.[17] In the 1965 Supreme Court decision Harman v. Forssenius, the Court unanimously found such measures unconstitutional. It declared that for federal elections, “the poll tax is abolished absolutely as a prerequisite to voting, and no equivalent or milder substitute may be imposed.”[18]

While not directly related to the Twenty-fourth Amendment, the Supreme Court case Harper v. Virginia Board of Elections (1966) ruled that the poll tax was unconstitutional at every level, not just for federal elections. The Harper decision relied upon the Equal Protection Clause of the Fourteenth Amendment, rather than the Twenty-Fourth Amendment. As such, issues related to whether burdens on voting are equivalent to poll taxes in discriminatory effect have usually been litigated on Equal Protection grounds since.

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Twenty-fourth Amendment to the United States Constitution …

History of Eugenics – People at Creighton University

 Eugenics  Comments Off on History of Eugenics – People at Creighton University
Jan 112016
 

In the same era, the idea of Social Darwinism became popular and was used to explain these social inequalities. Social Darwinism utilizes the concept of natural selection from Charles Darwin and applies it to society. Social Darwinism explains survival of the fittest in terms of the capability of an individual to survive within a competitive environment. This explains social inequalities by explaining that the wealthy are better individuals and therefore better suited to survive in the uncertain economy. In terms of survival of the fittest the wealthy are more likely to survive and produce more offspring than the poor.

Early Eugenicists

Eugenicists believed genetics were the cause of problems for the human gene pool. Eugenics stated that society already had paid enough to support these degenerates and the use of sterilization would save money. The eugenicists used quantitative facts to produce scientific evidence. They believed that charity and welfare only treated the symptoms, eugenic sought to eliminate the disease. The following traits were seen as degenerative to the human gene pool to which the eugenicists were determined to eliminate: poverty, feeble-mindedness-including manic depression, schizophrenia, alcoholism, rebelliousness, criminality, nomadness, prostitution.

Before eugenics became internationally recognized in WWII, it was a very popular movement in the United States. In fact the American Eugenics Society set up pavilions and “Fitter Families Contest” to popularize eugenics at state fairs. The average family advocated for the utilization of eugenics while educational systems embraced eugenics, which was presented as science fact by the majority biology texts. In fact, eugenics became so popular that eighteen solutions were explored in a Carnegie-supported study in 1911, to report the best practical means for eliminating defective genes in the Human Population. Although the eighth of the 18 solutions was euthanasia, the researchers believed it was too early to implement this solution. The most commonly suggested method of eugenicide in America was a lethal chamber, or gas chamber. Instead, the main solution was the rapid expansion of forced segregation and sterilization, as well as increased marriage restrictions. However, not everybody was in favor of eugenics, Punnett at the first international congress for Eugenics in 1911 stated, Except in very few cases, our knowledge of heredity in man at present is far to slight and far too uncertain to base legislation upon.

Sterilization and Marriage Laws

Although in 1942 the Supreme Court made a law allowing the involuntary sterilization of criminals, it never reversed the general concept of eugenic sterilization. In 2001, the Virginia General Assembly acknowledged that the sterilization law was based on faulty science and expressed its “profound regret over the Commonwealth’s role in the eugenics movement in this country and over the damage done in the name of eugenics. On May 2, 2002 a marker was erected to honor Carrie Buck in her hometown of Charlottesville.

This information was taken from http://www.eugenicsarchive.org/

This information was taken from http://www.freerepublic.com/forum/a371ea64170ce.html and http://www.trueorigin.org/holocaust.asp

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History of Eugenics – People at Creighton University

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Eugenics – Rotten.com

 Eugenics  Comments Off on Eugenics – Rotten.com
Jan 112016
 

rotten > Library > Medicine > Eugenics Eugenics means selective breeding — not in the sense that you are individually selective regarding persons with whom you breed, but rather that someone else is pulling the strings in order to get a specific result. Eugenics techniques are used all over the world, every day, for all manner of God’s creatures, but if you try using them on humans, people get very upset.

The theory behind eugenics is simple: When good people bone good people, good babies with good genes result. The trouble comes when trying to apply eugenics in an organized way to society, with the biggest problem being that someone has to decide who the “good people” are. Anyone who concludes that he or she is qualified to make this determination is generally the last person in the world who should have such power.

Early human civilizations had no special qualms about killing children who were sick or deformed, although they were not likely thinking about the genetic repercussions of doing so. The concept of selective breeding to enhance certain traits reaches back to prehistoric times, about 10,000 years ago, at least as far as animals are concerned. “Eugenics” is the word for a social mandate to impose selective breeding on a human population for the presumed good of all mankind, with the operative word being “presumed.”

The idea appears to have first been extended to humans by Plato, of all people, who recommended in his Republic that the ruling class should be carefully maintained by a secret program of selective breeding in which seemingly random orgies would be staged in order to breed desirable qualities. Strangely, this program tends to be left out of high school history books.

The actual word “eugenics” was invented by Francis Galton, a British scientist who was distantly related to Charles Darwin. In addition to studying the weather and analyzing fingerprints, Galton was deeply interested in how intelligence and talent passed from generation to generation. He invented the word “eugenics” to describe how he believed his insights should be employed — a social program designed to engineer racial superiority through coerced optimized breeding.

Galton believed people should be bred for success just like cattle. That is not a rhetorical flourish — Galton literally argued that people should be bred in the same manner as cattle, racehorses and dogs.

Darwin himself did not endorse his cousin’s views, although he conceded that there was a certain logic in the view that natural selection was no longer working to improve the human species:

Although some of Galton’s observations on social mating and inheritance were scientifically inspired, the overall thrust of his musings on genetics tended toward an aggressive defense of colonial-style racism, with much discussion of Britons — and especially upper-crust British nobility — as the master race, best suited to govern the “lower races,” especially people of (any) color. (The fallacy of this view is painfully obvious.)

Building on Galton’s ideas, a small group of intellectuals seized on the idea of eugenics and began working to promote the idea to governments and other cultural institutions. They succeeded in winning support from such luminaries as a young Winston Churchill who served as vice president of the First International Congress of Eugenics in 1912, and the Catholic Church. The esteemed elders of the Church had no beef with using eugenics to stamp out “undesirable” traits and prevent race-mixing, although they did object to the use of contraception. The 1914 edition of the Catholic Encyclopedia explained their position:

In the wake of World War II and the Holocaust, Western civilization conveniently edited the history books to obscure the fact that the eugenics movement had been quite popular all around the world. Although the modern mind would love to lump the responsibility for the horrors of eugenics onto the Third Reich, the movement originally garnered substantial momentum in the United States in the early 20th century.

America had already had its fair share of racial troubles, from the genocide of the continent’s original inhabitants to longstanding laws against interracial marriage to the “single drop” rule. A number of factors fed racial discontent in the U.S. as the 20th century began — the emancipation of blacks, a flood of immigration, the resurgence of the Ku Klux Klan and an economic depression.

The American eugenics movement took on steam with the discovery of genetic coding and the rise of such revolutionary figures as Margaret Sanger, a nurse who has been lionized by history and the abortion rights movement as an early advocate of contraception education.

Sanger was a screaming racist and a founding member of the Eugenics Society of America. Among other things, she advocated the sterilization of the mentally and physically disabled and endorsed the use of birth control to suppress what she saw as the tendency of the lower classes and “inferior races” to breed like rabbits. Later, she apparently reformed her views (although a substantial amount of controversy endures on this topic).

Sanger was hardly alone in her views. During the first 40 years of the 20th century, Americans embarked on a eugenics program that was in many ways as ambitious in scope as any of Adolf Hitler’s wet dream. In 1921, then-vice president and future president Calvin Coolidge wrote an anti-immigration rant for Good Housekeeping Magazine in which he bemoaned the mix of good Nordic (i.e., white) stock with “inferior” races:

Later, as president, Coolidge signed the Immigration Restriction Act of 1924 — which targeted dirty Italians and those dirty, dirty Jews — declaring that “America must remain American!” The law clamped lid on the good old “melting pot”, but then that was mostly a myth to begin with.

Other prominent American supporters of eugenics included Alexander Graham Bell, inventor of the telephone, biologist Charles Davenport, steel magnate Andrew Carnegie, Henry Ford, Charles Lindbergh and coprologist Dr. John Harvey Kellogg. Several U.S. states instituted a variety of eugenics-inspired laws — including bans on mixed-race marriage and the first laws in history to compel the sterilization of the “unfit” or disabled.

Many of these laws remained on the books for decades. Virginia’s forced sterilization law was upheld by the U.S. Supreme Court in an opinion written by Oliver Wendell Holmes Jr., now remembered by history as one of the greatest legal minds of the 20th century. Holmes not only upheld the compulsory sterilization law; he complained that it was not broad enough.

But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside.

At least 60,000 people were involuntarily sterilized for the greater good of eugenics in the United States, and that number is almost certainly a whitewash of a substantially more depressing reality. The figure also fails to include the effects of a wide array of secretive medical experiments conducted under the auspices of the U.S. government, such as feeding radioactive mush to the mentally disabled.

The man perhaps most responsible for the success and influence of the American eugenics movement was also unintentionally responsible for its eventual fall from grace. Oil tycoon John D. Rockefeller financed hundreds of thousands of dollars of research through his “philanthropic” foundations, and the inflation-adjusted equivalent of millions of dollars given directly to Germany’s budding Nazi pursuit of a master race, including funds that indirectly helped underwrite the playscape of Josef Mengele.

Although America had incubated the eugenics movement, Germany mechanized it to levels of efficiency never seen before (and hopefully never to be seen again). The Germans decided that their nation had to restore its pure blonde, blue-eyed Aryan heritage by purging foreign bloodlines, particularly Jews.

Putting aside the ensuing carnage for the moment, this concept is hilariously, ludicrously wrong. The mythopoetic blue-eyed ideal human race that dominated the Nazi imagination was itself a bastardization of the genuine Aryan stock, brought about by race-mixing. The original Aryans were Semites from Iran, more closely related to Jews than to Scandanavians.

After absorbing the rhetoric of American eugenicists and the money of American “philanthropists,” the Germans began an institutionalized eugenics program after Hitler took power in 1933. Initially, the program was directly based on U.S. eugenics laws. First, they mandated sterilization for anyone with an inherited condition such as congenital blindness or deafness, most forms of mental illness and alcoholism. This program prompted the New England Medical Journal to gush: “Germany is perhaps the most progressive nation in restricting fecundity among the unfit.”

American eugenicists were proud of inspiring Germany’s program, while American government officials eyed Hitler’s progress with envy. Many wrote that Germany’s efforts would be the seed of a worldwide movement and looked forward to the day when America’s leaders would follow the Nazi example.

Although the earlier efforts had largely concerned themselves with overt “unfitness”, the subtext of Jewish inferiority and other racial hate had continued to play out at every level of German society. It didn’t take long for this aspect of the Nazi agenda became clearer.

In 1935, the Nazis passed a law requiring couples to receive “racial hygiene” counseling before marriage, including answering questions about whether they had any Jewish blood. The government cranked out propaganda films intended to discourage race mixing. Jews and Gypsies were the biggest targets, and blacks, Slavs and gays were all designated “unfit” by the Reich.

As we all know (well, most of us), the Germans quickly determined that sterilization was a slow process, and that genocide went much faster. Although the Holocaust was arguably carried out in the name of eugenics, the scope of what happened next far exceeded anything Galton probably envisioned and is best discussed elsewhere. By the end of World War II, suffice it to say, the excesses of the Nazi regime had crushed most of the momentum that the eugenicists had built during the preceding 40 years.

Amazingly, the world’s shock and horror at the depravities of the Nazi extermination machine failed to completely derail the eugenics movement. It lingered through the late 1960s and even into the ’70s, but in a much quieter mode. By the early 1980s, forced sterilizations and anti-miscegenation laws had become a thing of the past.

In part, the disenchantment with eugenics came about due to the fatal flaw with the concept, that of the self-appointed arbiter of what is a desirable trait and what is not. As civil rights and racial equality rose in prominence, the eugenicists began to slink off into the woodwork.

The word is still bandied about, often by religious conservatives who believe that abortion rights and family planning programs are camouflaged eugenics programs. However, nearly everyone advancing this argument is anti-abortion first, and anti-eugenics second.

As genetic science became more sophisticated in the 1990s, some scientists also began to tiptoe around the notion of controlled breeding again, although no one is suggesting such a plan be imposed by the government any more. Instead, researchers cautiously note that certain conditions — such as Autism and specifically Asperger’s Syndrome — are extremely heritable among certain types of parents, with the gentle hint that maybe engineers shouldn’t marry other engineers. (The fact that Asperger’s may be part of a forward step in human evolution is quietly underplayed in such discussions.)

Fortunately, perhaps, there is little foreseeable use for the concept of controlled breeding, sterilization of “undesirables” and anti-miscegenation laws. The idea of manipulating the human animal through selective breeding is obsolete.

Future zealots who wish to “improve” the human race according to their own master plan will use the tools of genetic engineering to accomplish their goals. Why mess around with people’s sex lives when you can just inject them with an RNA retrovirus and magically remove all the undesirable qualities from their DNA? No muss, no fuss, no Nuremberg Tribunal!

Continued here:
Eugenics – Rotten.com

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University of Illinois Repeals the First Amendment for Its …

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Dec 182015
 

Late Friday afternoon (August 22), the University of Illinois broke its three-week long silence on the controversy regarding the Chancellor’s revocation of a tenured offer to Steven Salaita, who had accepted a faculty position in the American Indian Studies Program at the flagship campus at Urbana-Champaign. Chancellor Phyllis Wise and Board of Trustees Chairman Christopher Kennedy both issued statements explaining the revocation, but in terms far more alarming than the original decision itself. It is not an exaggeration to say that the Chancellor and the Board of Trustees have now declared that the First Amendment does not apply to any tenured faculty at the University of Illinois.

A bit of background to Friday’s bombshell statements. Last October, Professor Salaita, then teaching at Virginia Tech, accepted a tenured offer from the Urbana-Champaign campus. He went through the regular appointments process at the University of Illinois, and received approval by the relevant departments and deans after a review of his scholarship and teaching. The offer, which he accepted, was conditional on approval by the Board of Trustees. Such approval clauses are typical in all teaching contracts and had, previously, been pro forma at Illinois, as they are at all serious universities: it is not the job of the Board of Trustees of a research institution to second-guess the judgment of academics and scholars. Well before the Board took the matter up, even University officials were describing Salaita as a faculty member, and he moved to Illinois and was scheduled to teach two classes this fall.

Salaita also has a Twitter account. “Tweets” are limited to 140 characters, so the medium is conducive primarily to spontaneous and superficial commentary. As a Palestinian-American and scholar of colonialism, Salaita tweeted extensively about the Israeli attack on Gaza. Contrary to the initial misrepresentations put into circulation by far right websites, none of the tweets were either anti-semitic or incitements to violence. Some were vulgar, some juvenile, some insulting, some banal. The First Amendment unequivocally protects Salaita’s right to express every one of those opinions on a matter of public concern, and to do so, if he wants, with vulgarity and insults. As a matter of American constitutional law, this is not a close case.

Part of the First Amendment’s protection of such speech is that government, including a state university, is prohibited from punishing the speaker for his expression or viewpoint. Revoking a job offer because of such speech would, again, be clearly unconstitutional. Salaita’s constitutional and contractual claims will no doubt be adjudicated in court, and the University should lose.

That now brings us to Friday’s shocking statements. Chancellor Wise declared that “we cannot… tolerate… personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” Yet as a matter of well-settled American constitutional law, the University of Illinois must tolerate “words… that demean and abuse either viewpoints themselves or those who express them.” The University has no choice, both as a matter of constitutional law and as a matter of its contractual commitment with its faculty to academic freedom. Scathing critiques of both viewpoints and authors abound in almost all scholarly fields; it would be the end of serious scholarly inquiry and debate were administrators to become the arbiters of “good manners.” More simply, it would be illegal for the University to start punishing its faculty for failure to live up to the Chancellor’s expectations for “civil” speech and disagreement.

The university, of course, need not and should not tolerate the mistreatment of students in the classroom, but there is no evidence of any such pedagogical misconduct in this case; indeed, the public evidence is that Salaita is a successful and popular teacher. No serious university evaluates pedagogical fitness based on speculative inferences from twitter accounts, yet the Chancellor’s statement implies that this is what Illinois has done in this instance. Faculty have pedagogical and professional obligations to their students, but that does not include the obligation to refrain from expressing views, whether about matters of public concern or matters within the purview of a faculty member’s scholarship, that some student somewhere might find upsetting, leading that student to conclude that that faculty member might not “value[] that student as a human being.” A student’s entitlement is to be treated seriously and professionally in the classroom; students have no entitlement to never find the views of their professors offensive or upsetting.

Chairman Kennedy’s statement is even worse than the Chancellor’s. While endorsing the Chancellor’s abrogation of the constitutional and contractual rights of the faculty, he goes even further, declaring that “there can be no place” for “disrespectful and demeaning speech” “in our democracy, and therefore, there will be no place for it in our university.” We may certainly hope for more civility in public life, but “disrespectful and demeaning speech” not only has an extensive presence in our democracy (as everyone knows), it has a constitutionally protected place as well, as the United States Supreme Court has repeatedly affirmed. Yet Chairman Kennedy says he believes only in “free speech tempered in respect for human rights.” But there is no doctrine of “free speech tempered in respect for human rights” in American constitutional law. It is a national embarrassment that a public official, the Chairman of the University of Illinois’s Board of Trustees, apparently does not know even the basic facts about the American constitutional system.

At moments like this, one wonders: Where are the lawyers? Chancellor Wise and Chairman Kennedy have made statements that commit the University of Illinois to illegal because unconstitutional courses of action. They should resign, or be removed from office, before doing further damage to one of the nation’s great research universities. Their public statements make clear they are unfit to lead academic institutions in which both freedom of speech and freedom of research and inquiry are upheld.

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University of Illinois Repeals the First Amendment for Its …

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First Amendment – National Constitution Center

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Oct 282015
 

Clauses of the First Amendment

The Establishment Clause

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

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

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

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

The Lemon Test

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

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

Aid to religious institutions

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

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

Government-sponsored prayer

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

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

Accommodation of religion

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

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

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

Government-sponsored religious symbols

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Establishment Clause Doctrine

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

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

The Government May Not Delegate Governing Authority to Religious Entities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Free Exercise Clause

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Religious Liberty Is Equal Liberty by Frederick Gedicks

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

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

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

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

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

Read the full discussion here.

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

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

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

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

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

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

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

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

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

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

Read the full discussion here.

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

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

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

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

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

Freedom of Speech and the Press

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

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

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

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

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

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

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

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

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

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

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

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

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First Amendment Center | Newseum Institute

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

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

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

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

Find First Amendment research articles by topic or keyword.

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Learn more about the five freedoms of the First Amendment.

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

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

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

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

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FREEDOM OF EXPRESSION–SPEECH AND PRESS

Adoption and the Common Law Background

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

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

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

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

Footnotes

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

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

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

[Footnote 4] Id. at 1153.

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

[Footnote 6] Id. at 738.

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

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

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

[Footnote 10] Id. at 159 et seq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Annotation 6 – First Amendment – FindLaw

Second Amendment – Conservapedia

 Second Amendment  Comments Off on Second Amendment – Conservapedia
Oct 192015
 

See also gun control.

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

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

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

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

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

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

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

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

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

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

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

The One Comma vs. The Three Comma Debate

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

Quoted from: http://www.freerepublic.com/forum/a39388c210c1b.htm

Down to the Last Second (Amendment)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article the Fourth. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 8

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

Art. IV. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.9

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

Article the Fourth. A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.10

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

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

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

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

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

Article the Fourth. A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed. 13

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

ARTICLE THE SECOND

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.14

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

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

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. 18

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

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

Why the Commas are Important

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

Footnotes to Comment section:

1. Amendments Offered in Congress by James Madison, June 8, 1789. The Constitution Society. http://www.constitution.org/bor/amd_jmad.htm, 16 January 2000.

2. Amendments Reported by the Select Committee. July 28, 1789. The Constitution Society. http://www.constitution.org/bor/amd_scom.htm, 16 January 2000.

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

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

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

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

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

8. Bill of Rights. National Archives and Records Administration. http://www.nara.gov/exhall/charters/billrights/bill.jpg, 22 January 2000.

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

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

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

12. A True Bill. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/billofrt.jpg, 27 January 2000.

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

14. The Federalist on the New Constitution, 1796. The Constitution for the United States, Its Sources and Its Applications. http://www.nidlink.com/~bobhard/f16b1234.jpg, 17 February 2000.

15. Commentaries on the Constitution of the United States. The Constitution Society. http://www.constitution.org/js/js_344.htm, 18 February 2000.

16. Quotes from Constitutional Commentators. Gun Cite. http://www.guncite.com/gc2ndcom.html, 2 February 2000.

17. Statutes at Large 1845, 21.

18. Second Amendment–Bearing Arms. The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/amdt2.html, 18 February 2000.

19. Text of the Amendments (Literal Print). The Constitution of the United States of America. http://www.access.gpo.gov/congress/senate/constitution/conamt.html, 18 February 2000.

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

See also list of celebrities against Second Amendment

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

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

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Second Amendment – Conservapedia

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Annenberg Classroom – Fifth Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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Annenberg Classroom – Fifth Amendment

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00.03.07: Human Cloning, Genetic Engineering and Privacy

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

Yale-New Haven Teachers Institute Home

by Carolyn Williams

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

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

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

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

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

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

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

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

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

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

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

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

first successful freezing of bull semen – 1950

frogs cloned from asexual tadpole cells- 1952

frogs cloned using cells of older tadpoles- 1962

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

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

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

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

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

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

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

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

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

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

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

-Could a child have two genetic mothers?

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

-Could a man become pregnant?

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

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

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

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

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

Ethical concerns against cloning as outlined by the Commission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

from Omnis Future Medical Almanac (partial listing)

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

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

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

1991-1995 Scientists map all fifty cancer genes

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

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

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

Procedure:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Eugenics Board of North Carolina – Wikipedia, the free …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No Place For Sentimentality

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

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

North Carolina’s Selective Sterilization Law

Protects…

It Saves…

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

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

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

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

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

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

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

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

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

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

NCEB Case Summary: Elaine Riddick

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Second Amendment – National Constitution Center

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Oct 122015
 

The Second Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Reasonable Right to Bear Arms by Adam Winkler

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

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

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

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

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

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

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

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

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

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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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