Figure 1.-- |
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The Constitution primary deals with the structure and authority of the Federal Goverment and the limits on its power to preserve the powers of the individual states. It does not provide for basic civil liberties. These were provided in the Bill of Rights to ensure ratification. Civil liberties are guarantees of basic political and social rights. They are government guarantees of freedom, justice, and equality to each individual citizen. Basic civil liberties afirmned in the Bill of Rights are based on English Common Law strongly influenced by the Enlightenment. They include freedom of speech, press, and religion. A key cioncept is the due process of law. They basically involve limitations on the power of the state to restrain or dictate individual behavior. A basic tension exists between the concepts of equality and liberty. Equality implies the ordering of liberty so that one individual's freedom does not infringe on the rights of others. Liberty implies the right to act in ways permitted to others. The struggle for civil liberties began before the ratification of the Constitution. And after the Ratification oif the Constitution, America has struggled with the need to maintain order while upholding basic civil rights. Asesult, individual civil liberties have been most ijkpaired during periods of national emergency.
The basic law of Britain (except Scotland) is English common law, an unwritten law based on custom and usage, Emerging from the European Medieval era was English common law, England's great gift to America and its other colonies. English common law was a necessary comcomitant of capitalism which allowed the West to create the modern world. France had nothing like English common law as a result of royal absolutism. Modern England is an amalgum of many different peoples and Englisg common law shows an imprint of many of these peole. The exception was the Celts and Romans. The Romans supressed Celtic culture and the Anglo-Saxon s supressed Roman culture, including Roman law. Thus English common law is less influenced by Roman law than is the case of continental Europe. Thus English common law has a Germanic rather than a Roman foundation. Its origins are the legal concepts of the Anglo-Saxon invasions (5th century AD). King Alfred the Great (849-99 AD) reportedly translated thelimited legal texts of the day into English. To this Anglo-Saxon based was grafted Danish (Viking) legal traditions, most importantly the principle of trial by jury, William the Conqueror's victory at Hastings (1066) ended Anglo-Saxon rule. It did not, however, end Anglo-Saxon law. William combined Anglo-Saxon law with Norman law. William had ulterior motives. If he had completely supressed Anglo-Saxon institutions, his rule would have been dependent on the Norman barons. By wining over Anglo-Saxon England, the English crown could draw on a much wider base of support. The coimbination of Anglo-Saxn and Norman law eerged as English commn law. It developed as custom and precedent rather than by written code. This cimmon law came to be a real force (14th century). Courts and lawyers began to defer to recedents in legal decisions and commentaries. Another strain of English law is the law of equity (chancery). These were law issued by the monrchy to order or prohibit specific acts. The first major compendium of English common law was Sir William Blackstone's Commentaries on the Laws of England (1769).
English colonists brought the concepts of limited government and individual freedom which evolved as part of English Common Law to the newly founded English colonies. To a degree the Colonies developed on their own with control by the Crown or Parliamentl as England was engulfed in a Civil War, the Commonweralth, the Restoration, Glorious Revolution, and continental wars with France (17th century). By the time the Crown began to focus on the colonies, the precedent of self government and te rights of citizens had been firmly established. The independence of Parliament was firmly grounded in English Common Law, but not of colonial legistures. And as the Crown tried to exert its authority, the issue of civil liberties arose. YThe most notable event in the history of Colonial civil liberties was the trial of New York printer John Peter Zenger (1735). He was defended by Philadelphia lawyer Andrew Hamilton. Zenger was charged with seditious libel for critizing the colonial government in his publication--the New York Weekly Journal. The problem the Crown faced was it could arrest people, but they had to convince a jury. The Zenger trial established the principle that the government could not arrest indivisuals for publishing truthful criticm of government actions. The freedom of the press would be extended far beyond this in the United States.
The Enligtenment was a major influence on 18th century Colonial America and the concepts of civil liberties that would be reflected in the Bill of Rights. The writings of French philosophers Voltaire and Jean Jacques Rousseau were a major influence. Important British auythors were reformer John Wilkes and the philosopher Jeremy Bentham. Thomas Paine addressed these conceots during the American Revolution. Revolutionarl leaders such as Thomas Jefferson and James Madison were strongly imbuded with the concepts of the Enligtenment.
A range of issues led to the American Revolution. The central issue, however, was the authority of colonial legislastures. A range of concerns over civil liberties arose during the Revolutional War. These included freefom of the press, expression, public assembly, the right to bear arms and other matters. The quartering of British troops in the homes of Americans was another matter. Notably none of the other British Dominions rebelled against the mother country. This was because ofa change in Britisdh policy. Never again would they attempt to supress a colonial legislature in the Dominions.
Because of the experience with the British Crown and Parliament, the initiial American Governmernt following the Revolution was a very weak central government. It was based on the Articles of Confederation. The Articles of Confederation were essentially the first constitution of the United States. The Continental Congress declared independence (1776). The following years the Congress drafted the Articles of Confederation (1777). It was described as a "firm league of friendship" between the 13 British colonies. The Colonies were essentially fighting strong central control in the form of the British Empire. The Articles reflected the concern of the various colonies with central control. Under the Articles the future states were not just autinomous, but soverign. The states were maintained their "sovereignty, freedom and independence." There was no executive and judicial branches of government. Under the articles, te national government rested with Congress, essentially a legislative body in the for of a committee of delegates representing each state. The Congress had considerable responsibilitiyu such as conducting foreign affairs, declaring war or peace, maintaining an army and navy and a variety of other less important functions. What Congress did not have was the power to collect taxes, regulate interstate commerce and enforce laws. Congress could only ask the states to provide funds. The Articles were adopted by Congress (November 15, 1777) and came into force when the last of the 13 states approved the document (March 1, 1781). There was no executive or judiciary capable of threatening cvivil liberties. And it also proved incapable of meeting the needs of the new country becase of its weekness. Issues arose between the states that were impossible to decide. The British retained positions in the northwest. Americans were attacked on the High Seas by the Barbary Pirates and others, but there was no navy to protect them. It soon became obvious to most Americandss that a stronger central government was needed. This led to the Constitutional Convention.
The Constitution is the firstimportant written plan crafted to establish a new republic. Madison came to the Convention armed with a carefully crafted plan which came to be called the Virginia Pln. Madison's role at the Convntion has resulted in him being seen as the "father" of the Constitution. It was conceived to limit the powers of the Federal government by creating three independent braches of government, in part a reflection of American experience with what the founders considered to be King George III's unfettered executive power. Guaranteeing power to the states further limited the power of the Federal Government. There were many inperfections in the Constitution, including a failure to address slavery. There were also limits on democratic government. The fact that even in 2002, President Bush was relected with fewwer votes than Vice President Gore is a reflection of these limits. The new Constitution was hotly debated throughout America after the Convention approved it. Despite the imperfections, it was as Franklin observed, as close to perfect as could be achieved. Madison and Hamilton argued for its ratification in a brilliant series of political essays now called the Federalist Papers. The principal concern threatening ratification was fear--fear of the political unknown and dangers of both democratic rule and the political unknown. One noted scholar writes, "The Constitution was written not by hard-nosed, conservative political bosses determined to reverse the meliorist enthusiasm of the early years, but by idelaists ... who had come to recognize, reluctantly, the need to create the dangerous instruments of centralized power." [Bailyn]
Delagates in debates at the Constitutional Convention expressed a need to prevent the new Federal Government from abusing its considerable powers. The oratory here was impasioned. Opponents of a strong Federal government charged that the Constitution emerging would result in tyranny. Of course all delegates had the experience with British violations of civil rights both before and during the Revolution. Some delegates demanded a "bill of rights" that would spell out the rights of citizens amd limitations on Federal pwer in detail. During the subsequent debate over ratification it became obvious that provisions restricting Federal powers were needed to ensure ratification. It was not possible to actually rewrite the Constitution approved in Philadelphia. Thus it was decided to add 10 amendments to the Constitution. Some state conventions called to consider ratification demanded such amendments. Others states only ratified the Constitution with the proviso that such amendments would be offered. the First Congress of the United States thus proposed 12 amendments to the Constitution (September 25, 1789). These amendments were submitted to the 13 state legislsatures for their approval. These amendments met most of the concens of the anti-Federalists. The first two of these proposed amendments concerned the number of constituents for each Congressional distruct and the compensation of Congressmen. It is interesting to note that in the midst of considering such fudamental issues that Congressmen included their salaries. These two amendmets were not ratified. The other 10 were ratified by three-fourths of the state legislatures. These 10 amendments are commonly called the Bill of Rights and have since become a critically important part of the Constitution.
The French Revolution was at first received with considerable approval in America (1789). As the Revolution took a different course than the American Revolution, opinion began to change. Opinions tended to be defined by political orientation. Future Federalists were horrified. Future Repubicans were more sympathetic. President Washington was strongly opposed to any involvement in the wars that erupted in Europe. His prestige kept America out of these wars. And when French, British, and Barbary ships began seizing American ships, a furor arose in America. President Adams is recognized as the father of the American Navy because he managed to convince Congress to finance the construction of an American navy--six frigates. Much of the anger in America was directed toward Revolutinary France. The Jay Treaty (1794) temporarily resoved the issue with Britain, but the French took the Treaty as essentially an abandoment of the American alliance with France during the Revolutionary war. Thus there were fervent cries for war with France. President Adams while respected did not enjoy the same prestige as President Washington, but was determined to prevent war if he could. A great deal of inacuracies and outriught laws filled American newspsapers, many of which had party afiliations. The Federalists in Congress
enacted the Alien and Sedition Acts (1798). The new laws denied aliens from nearly all civil rights and threatened freedom of speech and the press by prohibiting “false, scandalous and malicious writing” against the government, Congress, or the president. It is not entirely clear why President Adams signed the bills into law. He was clearly the brunt of often scandelous distortions. The fear of war with France was probably another reason. The constitutionality of the Alien and Sedition Acts were never tested in court. They expired and were never reenacted. Most historians agree today that they were unconstitutional, although it is unclear how the Federalist-dominazted Judiciary would have interepted them. The Acts and subsequent arrests certainly marred President Adams' presidency and may contributed yo his defeat in the election of 1800.
The Civil War was the most costly war in American history. The results of the early engagements left the issue in doubt as to who would prevail. While opinion in the South was strongly in favor of the War, Northern opinion was far from unified. This was especially the case in the border states that remsained in the Union.
President Abraham Lincoln gave his ranking military commsanders broad authority to arrest civilians for disloyal acts, even speech. The President also suspended the cobstitutionally protected right of habeus corpus.
The United States remained neutral when war broke out in Europe. The United States attemoted to mediate without success. Presiden Wildson when Germany resumed unrestricted submarimne warfare asked Congress for a declaration of war (April 1917). Congress quickly authorized the draft (conscription) to build an army needed for the War. Two months later, Congress passed the Espionage Act (June 1917). The law criminalized actions found to be interference in foreign policy and espionage. Modern observers would define many of the sactioins today as dissent, such as the publication of material critical of the Government. The Act authorized fines and prison terms of up to 20 years for obstructed the military draft or encouraging "disloyalty". Opposition to the War centered on Socialist and Anarchist groups. Except for the Civil war, America had never instituted conscription. Many Europeans emigrated to america to escape the conscription that wsas common in Europe. Noted Anarchist, Emma Goldman and Alexander Berkman, spoke out against the draft. The Government raided Goldman's offices at >i>Mother Earth . They seized files and subscription lists. They also raided Berkman's journal The Blast. Congress also passed several laws aimed at immigration, anti-anarchist, and sedition. These incuded the Sedition Act of 1918 and the Anarchist Exclusion Act. These laws sought to criminalize the advocacy of the violent overthrow of the government or desertion from the armed forces, resistance to the draft, or membership in anarchist or revolutionary organizations. Violaters could be deported. In addition, German Americans came under wide-spread attack and the Government did little to protect them.
The Labor movement gradually gained strength in the lae-29th century. Government action anfd court rulings generally sided with the coporations ad against the unions. Large numbers of Europeans immigrated to the United States in the late-19th and early-20th century. This included individuals whjo were willing to take violent action to resolve the inquiies in American life. Movemets including Anarchists and Communists were influential in the labor movement. Not all those willing to use violence were immigrants, but theu\y certanly were a major proportion. Violent groups staged attacks, usually bombings, that scared many Americans. After World War I, fear of the Soviet Union added to the concern. The U.S. Department of Justice took action against suspected subversives. The most notable were the Palmer Raids (1919-20).
The Depression had a huge impact around the world. In America it affected many of the old certsinties of American life. Large numbers of people lost their jobs and found themselves unable to support their families. Families lost their farms and homes. In this environment, many began to question the capoitaliust system that was at the heart of the country's economy. Many turned to extremist groups, especially the Communist Party. For some it was a youthful daliance. For others it was a fervently held commitment. The Fascism with arose in Europe was less a factor in America, although the NAZIs had some limited influence among ethnic Germans.
As Europe headed for war, concern arose in America over domestic security. One factor was the increasing influence of the Communist Party. Another was the NAZIs and their use of German minorities and right-wing groups in neighboring countries. Congress held hearings. Congress passed the Smith Act (1940). The Act prohibited advocating the use of force and violence as a means of bringing about changes in government. When America entered the War, the Government interned Japanese Americans along the West Coast, which is where most lived. The United States interned German and Italiabn aliens, but in the cade of the Japanese, U.S. citizens were also interned. This was the greatest violation of civil liberties in American history.
The onset of the Cold War brought increasing concern over internal security because of the fear of Communism and Americans who were Communists or sympathetic toward Communists. The Depression had affected the outlook of a substantial number of Americans. Few had any idea what Communism meant foir the people of the Soviet Union or the satellite countries of Eastern Europe. Concern grew about Soviet espionage and Communists in important Government positions. Senator Joseph McCarthy of Minnesota made a name for himself by charging that there were large numbers of Communists in the Federal Government. Senators Patrick McCarran of Nevada was also active. Cogressional and state investigating committees conducted hearings that atracted considerable attention. Thousands of individuals were called before these committees and questioned about their their political activities and past associations in an effort to identify connections with the Communist Party. This is commonly described as the McCarthy Era and is widely condemed by historians. Often not mentioned is the sactual level of Soviet espionage and penetration. Congress passed the Internal Security Act (1950). The Act stablished a new federal agency for identifying and suppressing subversive persons and organizations. Congress essentially outlawed the Communist Party (1954). Membership in the party was not specifically criminalized, but membership carried onerous legal implications. Both laws were upheld by the Supreme Court, but enforcement was limited in scope and graduqally fell into disuse (1960s). The Supreme Court set a constitutional standard (1969). The Court sought to protect free speech unless “directed to inciting … imminent lawless action” and was likely to produce such action.
The Civil Rights Movement and opposition to the Vietnam War resulted in rising levels of protest which raised issues about the ability of the Government to limit or restrict protest. Such protests were rotinely brought into American living rooms (must see TV in the years before cable). The Civil Rights protests began in the 1950s, but receiuved little coverage until the 60s. State and municipal government sought to restrict the civil rights protests. The Ferederal Government sought to restrict Vietnam War protests. President Nixon's efforts led to the Waergate brake-in and his impeachment and resignation. Litigation on government actions let to Supreme Court decisions which provide guidance where, when, and how cities and states can limit the use of public places (streets, parks, and other places) to protest. The Court also addressed the issue of symbolic protest. Various governments had criminalized actions like burning draft cards and American flags. The Court upheld criminal convictions for burning draft cards. The Court reversed convictions for burning or mutilating the American flag as a form of expression (1989 and 90). The Court ruled that neither the Federal government or the states could single out the burning of the American flag for criminal pprcecution. An especially controversial protest case did not reach the Supreme Court. An American NAZI group sought to march in Skokie, Illinois, the home of many Holocaust survivors. Jewish residents were outraged. The municipal government attempted to block the msarch. State and Federal courts upheld the right of the NAZIs to stage a peaceful protest. The American Civil Liberties Union represented the NAZIs.
One issue arising from the Vietnam War did not concern protest, but rather the handling of national security secrets. While Government press censorship is clearly prohibited by the Constitution, the issue arose of using document classification for national security to censor the news. The New York Times and the Washington Post attempted to publish what has come to be called the Pentagon Papers (1971). The Government attempted to block the publication. The issue was that the Government may attemot to block publication for political rather than true national security reasons. The Supreme Court ruled that restraints on publication of national security material was only permisible when such material “will surely result in direct, immediate and irreparable damage to our nation or its people.”
The principle of free speech reaches back to Zenger trial (1735). But here is was speech that was factually correct. The First Amendment guarantees free speech, but the Court subsequently held that this guaranttee was not unlimited. Justice Cardozza wrote in the decesion that an individual does not have the right to yell "Fire" in a crowded theater. Left unaddressed for many years was the issuer of truth and accuracy.
The Supreme Court ruled that, even false statements about public officials were protected by the First Amendment (1964). The Court found that “actual malice” had to be proved before individuals could be held liable for false statements. Malice involved knowledge that their statements were false or that they wrote with reckless disregard of the facts. The Court subsequently refined this ruling. The Court left it to the discretion of the states whether or not to allow defamation actions brought by porivate individuals who are neither public officials nor notable figures.
Obsenity has been a difficult issue to deal with given the First Amendment and public sensibilities. Defining obsenity was another difficult problem. The Supreme Court ruled that obscenity is not constitutionally protected free speech (1957). The court defined osenity as material which taken as a whole, appeals to the prurient interest, is patently offensive in depicting sexual conduct, and lacks serious literary, political, or scientific value. The vagueness of this ruling led to numerous lawsuits involving explicit sexual material. Religious groups a attempted to restrict the distribution of sexually explicit material. One concern was that children might see it. Feminists were also concerned over the publication od sexuall explicit material. The question of just how to define obsenity thus became crucial. The efforts to restrict such publication had some limited success. Civil libertarians have attempted to limit such censorship. The Supreme Court struck down a Federal law that prohibited non-obscene but sexually explicit material on the Internet (1997). The Court found that Congress could not prohibit circulation to adults of constitutionally protected speech simply because children might see it.
Freedom of the press and expression is so important in the develoment of the West that a modern issue needs to be addressed--media bias. Media bias is the bias or perceived bias of not only journalists and news producers, but also entertaiment media, movies and television as well as academia where journalists are educated. It is important to consider not only the actual article printed or delivered on air, but the selection of events and stories that are reported. By media bias, we mean not the report of a single or small group, but pervasive, widespread bias that violate the standards of professional journalism. Here is should be stressed that journalist standards clearly establish media boas as unprofessional. There is no doubt that media bias exists--an overwhealming liberal bias. This has led many iberals to deny that their is a liberal bias despite the overwhealming evidence that it exists. This denial is in part dishonest and in part the academic training which presents liberal ideas as absolute truth and conservaive thinking as flawed if not actually evil.
Now of course media bias is not new. In many if not most socities, the state cintrolled the media or expression in the pubic fiora. Here we are taklking about media in free siocities which until recently have mostly been centered in Western Europe and North America. Here we see bised reporting, but we see media partisans on both or multiple sides of major issues. What we see today is very different. The news media, Hollywood, and academia are overwheamingly dominated by a liberal outlook. Conservaies are vurtually absent in Hollywood, a small proportion on campus, and vrtual xcklision from ghe main-line media. The result is not only biased reporting on not only politics, but in a range of social and economic issues, including aborion, conflict, crime, drugs, economic activity, gender, immigration, police, race and ethnicity, religion, and other issues. This all varies from country to country, but the phenonon in Western Europe and North America seems very similar, albeit more prnounced in Western Europe. Fox News and the Tea Party seemed go have been particuklarly Anmerican. In recenbt years there seems to be growing populism in Europe. This has occurred despite the media's drumbeat of OC ghought ciondeming much of the populist movement. The media in America fitrst uignired the Tea Party and finally unable to ignore the impact of the Tea Party condemned it. The sme is true in Europe. Populim in Rurope is now growing, fed most cospiculously by ilegal immigration. The American conservative thread is more lacking than in Europe, almost unique. There are national and international watchdog groups that report on bias in the media.
Bailyn, Bernard. To Begin the World Anew: The Genius and Ambiguities Of the American Founders (Knopf, 2002), 185p.
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