CIVIL LIBERTIES
Slide One
[ Silence ]
Audio: This presentation is courtesy of Brian Dille. I'm the speaker. And I'm a professor of
political science at Mesa Community College. A college of the Maricopa Community College
District in Mesa, Arizona. I hope you've enjoyed this presentation.
[ Silence ]
Slide Two
Audio: Welcome to America and Arizona Government for Elementary Teachers. This is
presentation 15, "Civil Rights and Liberties." In this presentation, we move to the next section of
the course, which examines the political processes in both national and state government. This is
a critical presentation not just on civil rights but the other ones to follow because it is important
for you to know how to access these government institutions we've learned about as a citizen,
what makes for effective citizen action, and how can you impact the policy process so that your
preferences are met. Now in this particular presentation, we look at civil rights and liberties. It is
important to make a distinction between a substantive and a procedural democracy. In a
procedural democracy, elections are held, political parties are allowed, but it's not really a
democracy. For example, Cuba and Iran both hold elections. In Cuba, 98% of the people vote.
Now the problem is there is only 1 candidate on the ballot. Iran is a little better than Cuba in that
there are other parties, and opposition parties are allowed, but there isn't really a sense that these
are free elections because the candidates have to be approved by the ruling mullahs and if the
opposition party complains a little too much about the current government, then their newspapers
and their party offices tend to be destroyed by club-wielding militias. So, in those countries,
elections are held, but it's not really what we would characterize as a democracy. So, it's a
democracy in procedures only, not really a substantive democracy. What makes a substantive
democracy is the amount of civil rights and liberties that are enjoyed by their citizenry. It is the
defining characteristic of whether or not there is a healthy civil society.
Slide Three
Audio: This presentation will focus on AEPA Objective 17, Understand the Rights and
Responsibilities of U.S. Citizenship, as well as Objective 18, Understand the Basic Features of
Democratic Government in the United States. As far as the social studies standard goes, it will
examine Concept 3, The Functions of Government, and Concept 4, The Rights, Responsibilities
and Roles of Citizenship. As usual, you are encouraged to look at the standard articulated by
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grade level for Strand 3, Civics and Government. And look at the objective listed under each
grade level for Concepts 3 and 4. Then, at the end of this presentation, it would be useful to again
review that document to see which concepts and objectives you feel comfortable and have a
measure of competence with.
Slide Four
Audio: When we're talking about rights, particularly when rights can be at odds with one another
and we have to make choices about whose rights are going to be guaranteed and whose are not,
it's important to ground that discussion of rights in pluralism. Now, if you remember the
discussion about the founders at the beginning of this course, the founders argued that we should
have a pluralist society. Pluralism is that notion that factions within a society compete with each
other for power and influence. They compete with each other that their preferred policy outcome
will succeed at the expense perhaps of another group's preferred policy outcome. Pluralism
argues that these groups can constantly compete for power but no one of those groups wins every
single battle, that the group that wins alternates. Not necessarily they don't take turns but one
group will win one battle, maybe it wins 2 or 3 in a row, but then another group might win a
battle. The game is not rigged so that one group wins all the time. Now in a pluralist society, the
function of government is to act as a referee between those groups, and the argument was that as
these groups compete for power they will prevent any one group from dominating, which would
prevent the rise of tyranny in this American experiment in democracy.
Slide Five
Audio: When we're talking about rights, particularly when rights can be at odds with one another
and we have to make choices about whose rights are going to be guaranteed and whose are not,
it's important to ground that discussion of rights in pluralism. Now, if you remember the
discussion about the founders at the beginning of this course. The founders argued that we
should have a pluralist society. Pluralism is that notion that factions within a society compete
with each other for power and influence. They compete with each other that their preferred
policy outcome will succeed at the expense perhaps of another group's preferred policy outcome.
Pluralism argues that these groups can constantly compete for power, but no one of those groups
wins every single battle, that the group that wins alternates. Not necessarily they don't take turns,
but one group will win one battle, maybe it wins 2 or 3 in a row, but then another group might
win a battle. The game is not rigged so that one group wins all the time. Now in a pluralist
society, the function of government is to act as a referee between those groups, and the argument
was that as these groups compete for power, they will prevent any one group from dominating,
which would prevent the rise of tyranny in this American experiment in democracy.
Slide Six
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Audio: The problem though is that in the real world, in American history, that ideal situation that
pluralism describes of groups competing for power, none of whom are privileged over another,
has never really existed, that it has always been the case in our country that some groups have
more access to power than other groups. Some groups have more access to economic gain than
other groups. The contest between these groups then is not really a fair contest. The game indeed
is rigged in some ways to prefer or privilege some groups over other groups. The civil rights
struggle that occurred throughout our country's history but culminated in the 1960s illustrates
this notion that the contest was not fair, that the system had been rigged to prevent a group of
citizens from exercising the rights and privileges accorded to them by the Constitution. Now, this
structural inequality persists in many ways through America, and this creates problems for our
democratic theory.
Slide Seven
Audio: One reason this matters, the fact that some groups are privileged over others is because
their democracy depends on a stable engaged citizenry. And for that to happen, there needs to be
some measure of equality or at least a perception that equality might happen in the future. If we
look at the diagram on the slide, what we have is a visual representation of two different
societies. On the one society on the left, we have the population where there are a few rich or
elite members of that society than a small middle class and then the majority of that society is
poor. Now, that pyramid represents the class or power distribution in many parts of the world.
These societies that are characterized by a triangle in a power structure are typically authoritarian
societies or if their democracies, their democracies are short-lived. One reason is because if your
society looks like a triangle and you hold an election, the majority wins an election. Well, a
majority of this society is poor and so those people are likely to support candidates who are
revolutionary or radical in their views of economy. They're going to change the economic system
because the system is rigged to support the elite and so maybe they're going to nationalize an
industry or carve up a plantation and give it to peasants, any number of reforms that might
redistribute wealth and help the poor population out. Well, the problem is that the rich and elite
in those societies aren't typically willing to let that just happen. This society benefits them the
way it's currently structured and they control the economic, political, academic, and military
power structures of that society. And so typically, when elections happen in societies like this,
one of two things happen after a populist politician has been elected. They either put their arm
around a populist and say, "Congratulations on your new election. Welcome to the club. You
now are going to be part of the elite and they cooped the leadership into the elite class," or if the
populist candidate resists that, what happens more often than not is the candidate is awoken at
two in the morning by the guys with guns and the democracy ends and this pattern happens over
and over again throughout Latin America, Africa, Southern Asia, democracies tend to be highly
unstable in these types of societies. Now, contrast that with a society that looks like the one on
the right, a diamond shaped where you have a few rich and elite members of the society and you
have a few poor and disadvantaged members of the society but the majority of the population
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lives somewhere in that middle class, maybe at the top, maybe at the bottom but they're in the
middle class. In this society, a populist, radical candidate typically does not win the election
because that middle class are not revolutionaries. They have jobs. They're making enough money
to pay their mortgage. They have a reasonable hope that their kids will be able to go to college.
They don't have a reason to support a radical plan to shift the distribution of power in society. So
the candidates that they support tend not to threaten the position of the rich or elite and trigger a
counter-democratic revolution. So in a society where the majority of the citizens have a stake in
maintaining stability, the society itself becomes very stable.
Slide Eight
Audio: Okay. So what does all this mean for civil rights? When we apply that concept of the
triangle versus the diamond to the electoral body of a democracy and one that is marked by a
structured inequality, it creates some potential problems. Now, in America, the structured
inequality of our country tends to fall along the three lines, race, money, and education. You can
predict a person's economic well-being and station in life to a great degree or accuracy if you
know their race, the financial background of their parents, and the level of education they've
achieved. Those three factors are huge indicators for future success. In the United States, class is
not a solid boundary. People move up and down through class boundaries. Poor people get rich,
rich people get poor. But where those boundaries become solid is when race is involved or if
education level has changed from one generation to the next. And then, again, the amount of
money your parents have has a great determining factor over the amount of money that you'll
have. So we seem to have some structured inequality here in America. Why does all of this
matter? It matters because the more unequal a society can be, the closer it becomes to that
triangle as opposed to the time and shape, the less stable the democracy is. See, the underclass,
whether that's defined through race, money, or educational means, the less privileged in society
have to have hope. They have to have a stake in the system. They have to believe that the system
is not rigged in a way to guarantee their failure. If they believe that it's possible to succeed, then
they will accept the legitimacy of that system even if they do not succeed. They just have to feel
that it is possible to succeed to get that legitimacy. Now, if there's a permanent class system built
along racial or educational lines, that creates resentment because the disadvantaged members of
society look at the system and say, "The system is rigged. It is impossible for me or my children
to advance in this system." And at that point, they lose their stake in the system. They don't
accept the legitimacy of the system any longer and that then breeds disorder and rebellion and
that pattern repeats itself again and again through struggling democracies around the world. This
means that all groups in society whatever their station in life have a stake in ensuring a fair
contest. If you belong to a privileged group, it's still in your interest to advance the cause of
unprivileged groups. And clearly, if you belong to that unprivileged group, it's in your interest to
advance the cause of fair contests in underprivileged groups. So this is one reason why this
question of civil rights and civil liberties matters to everyone in the country whatever group or
whatever position of privilege they may hold.
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Slide Nine
Audio: Now, if you remember in the discussion of the formation of the Constitution, the promise
that a Bill of Rights would be put in the Constitution was a key factor in the deal to get the
Constitution passed, to get it [inaudible] in the States who were--many of whom were leery of
this strong Federal Government. But, there are basic rights in the document itself, not necessarily
in the Bill of Rights, that do guarantee some limits on the State and so some of these are basic
writs include the writs of the Habeas corpus. Now the right of Habeas corpus is the requirements
that the State cannot arrest somebody without explaining the reason why they're arrested. They
have to give a reason why they're holding a person. Habeas corpus is Latin for, produce the
body. And so if the police pick you up in the middle of the night, they can only hold you for
about 24 hours. At that point they have to stand before a Judge in a public hearing and present to
the Judge, what you're being charged with. They also have to present some bit of evidence to
demonstrate that there's a reasonable suspicion that you have committed that crime. The Judge
then determines whether or not crime has been committed and it's at least possible that you
committed that crime. This is called an arraignment hearing. If the Judge determines that there is
a case there, then the Judge will typically decide whether you have to stay in jail while you're
waiting a trial or set some level of bond. Now this process of Habeas corpus is a fundamental
right. It harkens back to the Magna carta and it is the first limitation on State that we have. It's
the bedrock freedom because, if the Government can throw people in a dungeon, and not tell
them why, not charge them with a crime, not tell their relatives where they are, not allow them to
have an Attorney. If a Government can do that to somebody, then no other freedom is safe or
protected in that society. Another law in the Constitution is a prohibition on ex post facto laws.
These are laws where you're engaged in legal behavior today but a month from now the
Legislature passes a law that makes that behavior illegal. They then say, oh wait a minute I
remember this person was doing that a month ago and they run and arrest you for doing that.
They can't do that. That's called an ex post facto law which is Latin for "after the fact". When
they pass a law, the behavior becomes illegal from then on. They can't punish you for what you
did before the law became illegal. The third category that's in the Constitution are bills of
attainder. Bill of attainder is where the legislature specifically names you in the bill as the person
who will be punished. They make you illegal by right of you being you. An example of this
would be in the French Revolution and the Jacobeans, the way won their arguments is in their
Congress is they would say okay, my political opponent is wrong, and he's clearly wrong,
therefore he's a traitor. All in favor of executing my opponent raise your hands. And then you
count the hand and say, op, there's a majority. The laws been passed democracy has spoken and
they drag them out and guillotine them. So the Constitution wanted to make sure that that kind of
thing never happened in this country so, it's Unconstitutional to pass a law that singles out a
particular individual or group and making them illegal. Now these writs are basic writs but yet
there are times when even these basic writs have been denied or removed from individuals. It's
useful when we're thinking of the status of writs in the United States to not think of it as an
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absolutist. Do we have writs, or don't we, but rather to think of our writs as existing on a
continuum somewhere between having no writs at all and having an absolute writ with no
interference. On any given day, we're probably somewhere in the middle of that continuum. And
we can think of the Government and Governmental Writs, as a pendulum that swings along this
continuum depending on the situation. Typically through most of our history when the nation
feels threatened, they remove some of these writs and the country becomes less free during the
period of threat. And then when that threat subsides, the policy changes and those writs are
restored and in many cases pendulum swings the other direction and even more writs are granted
than had before until another threat comes and then the pendulum swings back. So, we had
during the War of 1812, we had the Alien and Sedition Acts which ruled that you were not
allowed to criticize the Government. We also had a similar law in World War I where if you
spoke against the Government, they put you in jail. We can think of the Civil War when
Abraham Lincoln declared martial law in the State of Maryland and the entire legislature was
thrown in jail for the duration of the war. They were never charged with a crime. Their writs of
Habeas corpus were totally violated but it happened during the period of the war and at the end
of the war, those people were released. During World War II we have the Japanize Internment
Camps. Again, those people had not committed any crime and they had done nothing to justify
that incarceration and yet they were put in these internment camps for the duration of the war.
Currently we're fighting a war on terror and the Patriot Act has ruled that in cases where the
government suspects a terrorist group or an American who is engaged in terrorists, that they are
allowed to violate all sorts of writs that they cannot otherwise do. We could look at Guantanamo
Bay as an example of this. We grant people from battlefields and put them in Guantanamo Bay
and there we've held them for almost a decade and those people have not been charged with a
crime. They were not allowed any legal representation for years. They are now, but for years
they were not allowed legal representation. Most of them were not able to communicate with
their families to let them know that they were safe and in custody for years. Now, about 8 years
after September 11th, the pendulum, I guess 5 years after September 11th, the pendulum began
to swing the other direction and courts began to hoarder the Executive Branch to start according
some of these writs to the detainees in Guantanamo. So the pendulum swings back and forth and
it's critical that as citizens we are vigilant about these writs because the pendulum typically does
not swing back towards freedom unless citizens demand that it swing back and remember if the
government can violate a Habeas corpus writ, then no other writs are free. So these are some of
the basic writs that are in the Constitution itself, that are guaranteed to all who reside here.
Slide Ten
Audio: In addition to those rights guaranteed in the text of the Constitution. So, we have the Bill
of Rights, the first ten amendments which were quickly added to the Constitution to guarantee a
set of rights and liberties to the American people. And I want to focus a bit on the First
Amendment protections. The First Amendment guarantees the rights of speech and assembly and
freedom of conscience. These are fundamental rights for society that wants to be a substantive
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democracy to hold. Now one reason that this collection of rights are so important is because
these protect by recognizing the intrinsic value of individual expression. John Stuart Mill the
philosopher pictured there in the black-and-white picture. He used an analogy to explain why the
freedoms of expression were critical to a free society. He said that when you go shopping for
cabbage in the market you want to be able to choose from more than one kind of cabbage. You
might want green cabbage, you might want red cabbage, there's small and large cabbages, there's
moldy cabbages, and there are under-ripe cabbages and you want to be able to sort through and
pick out the cabbage that's right for you. Mill was using that cabbage market as an analogy for
the marketplace of ideas. That if you allow ideas to flourish and you do that by allowing
expression of those ideas to flourish. That the number of ideas that are out there available to be
chosen proliferate. And just as you are better off having multiple cabbages to choose from in the
marketplace, you're better off having multiple ideas to choose from in the marketplace of ideas.
And what Mill argued is that in this contest with ideas that good ideas will come to the top and
the bad ideas will sink to the bottom. And in that discourse, that competition, of ideas that a free
society allows the best ideas come forward. This means that maximizing public discourse is an
instrumental good, meaning society is better off because the public discourse is free and the best
ideas are able to come forward. Now this is hard to do, because sometimes ideas are put forward
at that are abhorrent to you. You think they're really terrible ideas. That idea is a moldy piece of
cabbage. But what John Stuart Mill argued was that you cannot regulate the marketplace of
ideas. You cannot say, "No moldy cabbage is allowed in our marketplace." Because if you, as
soon as you do that, then the gatekeeper who gets to decide what cabbage is moldy and what
cabbage is not will begin to show their own preferences in what ideas are allowed into the
marketplace. So this is another reason why it's important for everyone to support other people's
rights of expression. It is to protect that marketplace. Now, the other amendments in the
Constitution and the Bill of Rights are equally as important. We have the Second Amendment,
which allows the right to bear arms. We have the Fourth Amendment, which guarantees due
process. The whole range of the Bill of Rights protects our freedoms and insurers that we have
liberties, meaning our actions are not infringed, and we have rights. Meaning the government's
actions are infringed. And one last thing to mention on this constitutional basis of rights, and that
is the process of incorporation. Incorporation is the word to describe how these rights, which are
guaranteed in the federal Constitution, and provide limits on federal action, now are applied to
state and local governments. Now this occurred through the Fourteenth Amendment, which has
an equal protection clause in the Fourteenth Amendment. And the Supreme Court has ruled in
several different cases that states are required to guarantee equal protection to their citizens
explicitly by the Fourteenth Amendment. The process of incorporation is how the court, one
right at a time, has applied that constitutional right to the states through the Fourteenth
Amendment's equal protection clause. And so it has a result most of the rights and freedoms
guaranteed in the Bill of Rights are now in operation in the states through this clause. Now of
course a lot of the states incorporated these freedoms into their own constitutions anyways. But
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for those who hadn't, this process of incorporation began in the twentieth century and continues
today. Though most of the fundamental rights have been incorporated at this time.
Slide Eleven
Audio: Now while we often think of these rights in the Constitution as being rights that are
guaranteed to all, the fact is that we have a tiered system of rights in the country. And what I
mean by that is that some rights are universal whereas other rights are only accorded to citizens.
So at the base level we have human rights. And human rights are those natural rights that John
Locke argued were inalienable. These are the rights to life, liberty, property. These are rights that
all people who are within the borders of our country are guaranteed, regardless of citizenship or
residency status. They are a human right and so they are accorded because people are breathing
not because of what country they may or may not belong to. So that's the basic foundation of
rights. Are the human rights. Then on top of that are the constitutional protections that legal
residents enjoy. So those people who are citizens and those people who have legal status and
have conducted the paperwork I guess, for lack of better word, to have a recognized status in the
country. Have a level of constitutional rights that other foreigners and visitors do not. So these
would be rights that are accorded to citizens that are not accorded to noncitizens. In particular,
the right to an attorney, for example. Or the ability to pay taxes and buy into, for instance Social
Security. We might think of the residents of Puerto Rico, for example. Those people are, those
citizens are accorded the rights of citizenship even though Puerto Rico is not a state and therefore
they're not technically citizens. But they have a legal status, therefore they are accorded many of
the same rights and privileges that other citizens have. So they can opt into the Social Security
system, and Medicare and Medicaid. They can serve in the miliar- the Armed Forces, those
things. Now, on top of that then are civil rights. And by civil rights I don't mean the civil rights at
the beginning of this presentation, but a much more narrow legal meaning of the term civil
rights. And these would be the rights to carry weapons, the rights to vote, the rights to drive a
car. These rights are guaranteed to all citizens, but they can be revoked under a number
circumstances. If you're not a citizen, than you can be prevented from doing these things.
Convicted felons loose their civil rights. And that means they can't carry a gun, they can't vote,
they can't run for office in most states. Depending on the crime they've committed they might not
be allowed to drive anymore. So there are some rights that only citizens in good standing are
allowed to have. So we can think of rights, again, not as an absolute you either have rights or you
don't, but if we think of rights as a long, a continuum, then in the country there are tiered rights
depending on your status. I do need to point out that if you are a suspected terrorist you have the
fewest rights in this country. Again because of the post-9/11 legislation and executive orders,
many of what you might consider to be a fundamental right to freedom can be denied and the
government is not bound by the same restrictions in the things they can do to you if they suspect
you of being terrorist than everybody else. So that also points to this notion of a tiered system of
rights the country.
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Slide Twelve
Audio: Because a certain amount of rights are connected to citizenship it's useful to take a
minute here and talk about what the pathways to citizenship are. There's basically three ways of
becoming a citizen in this country. The first is jus solis, which is a Latin term for legal by dirt.
And what that means is that for most of this country's history and explicitly after the Fourteenth
Amendment was passed if you're born in this country, you are automatically a citizen regardless
of the status of your parentage. If you're born on American soil you immediately become a
citizen of the United States. Now that means anywhere that's American soil, so obviously within
a state's boundaries but also an embassy, an American flagged vessel, a military base abroad,
those are all considered American territory. With treaties with other countries accorded those
rights and privileges. And so I remember when John McCain was running for president there was
a small group of people who were trying to argue that McCain was not really a citizen and was
be disqualified from serving as president because he'd been born in Panama. Those people don't
understand the way citizenship works because Panamanian, a US military base in Panama is
considered American soil. Now the second pathway to citizenship is jus sanguinis. Which is
Latin again for legal by blood. This is the path where you inherit your citizenship from your
parents. So if either of your parents are a citizen you are automatically a citizen no matter where
you're born. So if you're born in France while your parents are there on vacation, then you are a
citizen. Even though you were born in France. And this also is another reason why those who
argued that John McCain was not a citizen don't have much standing is because John McCain's
parents were Americans. Likewise there's a vocal group that argues that president Obama is not a
citizen. Well, again his mother was an American so he was automatically an American. So
whether you gain your citizenship through your parentage or where you are born, those are the
two ways of getting your citizenship through birth. Now there's a third way for those who don't
qualify for birthright citizenship. And that is through a process of naturalization. Naturalization
is where you go through a legal process to declare your citizenship and you're granted citizenship
by the state. It is a fairly lengthy process. It is relatively expensive depending on your means. If
you're a Mexican peasant it is pretty much impossible. It's outside of your means because of the
expense and time it takes to do it. But there is a legal process that you go through. And the
picture on the upper left is a naturalization ceremony where people are raising their arms to the
square and swearing allegiance to the Constitution, which is how you become a citizen of the
United States. So those are the three ways that you gain the rights of citizenship that come with
being a citizen of the United States.
Slide Thirteen
Audio: Now these rights that we have, these civil liberties and civil rights are again not absolute.
Particularly because occasionally the demands of society and the demands of the individual are
at odds. And so the boundaries of where on that continuum of rights that we ought to be is a
constantly contested notion. And these lines can be drawn in a number of different areas. And so
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the first place I'd like to discuss where to draw the line on the continuum between rights and no
rights is individual versus communal rights. Now, individual rights we have an intuitive sense for
because we live in a Western society where individual rights are dominant. And in many cases
absolute. We're an individualistic society. Communal rights is a new notion and in some cases a
foreign notion to most Americans. The communal rights argues that a society has rights just as
individuals do. A community has a right to define itself. The community has a right to declare its
norms of what is acceptable and unacceptable behavior. A community has a right to require some
level of agreement or conformity to its norms. An example of this would be a noise ordinance. I
might want to play my music really loud. How many if you have some friends visiting and this is
the only time we're going to get together and we're going to wait until it's dark outside so it's not
so hot. And we're going to sit in my backyard and just really crank some music and enjoy my
friends being together. Well, my right to listen to whatever music I want to doesn't supersede the
right of my neighbors to have a good night sleep. You know they've got to get up at four in the
morning to beat the rush hour. Now I am in direct contradiction. My individual rights are running
into my community's rights. And so that line of where on a continuum should we draw the line
between individual and communal rights is constantly being contested because people want to
assert their individual rights and communities want to protect their communal rights. One place
where this debate is playing out now is the question of gay marriage. The argument in favor of
gay marriage is that individuals should have the right to define marriage anyway they see fit.
That is if two individuals are in love society has no right to dictate to them what the terms of that
love should be. Now the counterargument is, is that marriage is a public institution, it's a public
commitment, and the society has a vested interest in the maintenance of the family unit as the
primary place that children are socialized and the skills of citizenship are developed and the
economic basis of labor is produced. That society has a vested interest in maintaining a healthy
family unit. Therefore there is a communal right to define marriage in a way that maximizes the
possibility of having healthy family units. So the contest between these two competing claims of
individual versus communal rights plays out in our day on gay marriage but has played out in
other domains as well. So it's one of the contested boundaries for rights.
Slide Fourteen
Audio: Another place where the boundary lines are contested is the notion of compelling state
interest. At what point does the state, the government, have a stake or a clear benefit in taking
actions that might curtail the individual rights of their citizens. Now an example for this as it
relates to speech rights is the prohibition against yelling fire in a crowded theater. Now you, as a
free person, should be able to say whatever you want to say but as soon as you yell fire in a
crowded building, it could create a panic and other people will be harmed in the ensuing
stampede to try to get out of the theater. And so the courts have long held that in cases like that,
if the state can prove that it has a compelling interest, that it can deny individual rights and it can
cross the boundaries of state behavior that otherwise would be put in place harkening back to the
Patriot Act and the denial of habeas corpus rights to the detainees in Guantanamo. The courts
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ruled early on in 2003 and 2004 that the state had a compelling national interest in holding those
people without granting them habeas corpus rights. Now the courts reversed themselves about
three years later and again the pendulum swung back but it was on this argument of compelling
state interest that justified to the courts the pendulum moving so far toward security and away
from rights and liberties. Another example, and that's the one pictured on the slide here, is peyote
use. Peyote is an hallucinogenic drug that is used by some native tribes in their religious
ceremonies. But the government classifies peyote as a controlled substance because it's a
hallucinogic drug. The government argued that it had a compelling state interest in making the
use of peyote illegal and that state interest overwhelmed the right to religious freedom that the
native tribes had. The courts then had to decide where should they draw that line on that
continuum of individual versus state interests? And the place that they drew that line was that the
state did, in fact, have a compelling state interest. At the same time, the native tribes had a
religious right to peyote. So the courts ruled that the government can control the use of peyote
but it's not allowed to control it when native americans are using it in their ceremonies. So that
means that if your buddy decides to go out to the desert to use peyote to be at one with nature,
the DEA agents could take that buddy and throw them in jail because unless they're a Native
American going through an authentic Native American religious experience, they're not allowed
to use peyote and the government does have a right to restrict that use even if you say it's part of
your religion. I mean you can think of Rastafarians who argue that using marijuana is part of
their religion. The government says sorry and will throw you in jail anyways because the drug
war is a compelling state interest as defined by the courts.
Slide Fifteen
Audio: Which brings us to another contested boundary, and that is the question of public versus
private. At what point does your behavior become a public concern. If you're engaged in
behavior behind closed doors, and you're not harming anybody, and all of the people who are
participating in that behavior are consenting adults, is it nevertheless a public concern meaning
the public can declare that behavior to be illegal and punish you for doing that. This line of what
is public versus what is private is another hotly contested boundary. When we think of
consensual crimes, those are typically what fit in this category. So, marijuana usage, for
example. Here's a picture of marijuana being sold opening in Riyadh, Saudi Arabia, whereas that
same marijuana would land you in jail if you had it in the United States because that public
boundary is drawn in different places for different societies. The question of suicide and
particularly physician-assisted suicide, is that a private decision or is that a public concern. What
about pornography? What about prostitution? What about abortion? There are many moral areas
that some argue if it's a victimless crime then the public has no right to restrict it, but the
counterargument is that the public does have a right to protect itself from moral decay, I guess,
or from the consequences of that private action. So, your engaging in light drug use might not
harm anybody immediately, but that might be a gateway to a more harmful drug where you
would harm people under its influence. Or perhaps a society has an interest simply from the lost
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productivity as your brain becomes drug addled and you are no longer able to contribute to
society. Are you going to be a ward of the state on welfare or social security on a disability
because of your victimless drugs use? So these arguments go on and on and on in different
domains, but the point I'm making here is that it is contested boundary of where that line should
be drawn on that continuum of rights, and one of those lines is the public versus the private right.
Slide Sixteen
Audio: One last area to discuss on this notion of contested boundaries is the issue of rights
versus responsibilities. Now, our culture, because we're a western individual society, we tend to
focus on civil rights. But very little emphasis is put on civil responsibilities. If you remember in
an early presentation in the course, we discussed the need for society to practice civic virtue. In
fact, the health of our democracy and our freedoms depend on civic virtue. The notion that you
will voluntarily restrain your own behavior rather than being unrestrained. And therefore,
requiring the state to make all sorts of rules and guidelines to protect yourself and those around
you from your unrestrained behavior. So civic virtue is one example of this. But without selfregulation, society has to make additional rules to protect itself. And those rules limit the rights
and freedoms that were there before people abused their rights and liberties. So it's important to
remember that rights are not absolute. Just as we have the picture of the rural intersection here.
Will you stop even when no other cars are around? That's a good test of your civic virtue. And in
our society we probably should talk more about responsibilities than we do. There are some
members of our society that understand responsibilities. We might think of those who serve in
the Armed Forces. We don't need to give a lecture on responsibilities to those folks usually. But
most Americans take their rights for granted. And don't acknowledge the fact that in a society
that has the rights and freedoms we enjoy. Along with those rights come responsibilities. That it
is a package deal that rights are not absolute. And that you have a responsibility in the
maintenance of those rights.
[ Silence ]
[ Silence ]
Slide Seventeen
Audio: One way to view our nation's history is that it has been one long struggle to increase the
rights and freedoms enjoyed by citizens. Whether that's the right to vote or the freedom of
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speech. These rights have continually expanded throughout our history. Now, each expansion
has been met with resistance. And there are always trade-offs when new rights and freedoms are
exercised. Quite often one group gains rights and freedoms at the expense of other groups'
privileges. And possibly their own rights and freedoms. Once again, it's important to have a
vigilant citizenry to ensure that the progress towards more rights that has been achieved is not
lost. It's important to remember the pendulum. And in our day the pendulum has swung more
towards the security side. And the day will come when it swings back towards the right side. But
only if the citizens demand it. This concludes the presentation on civil rights and liberties. The
next presentation we'll look at public opinion and participation in a democratic society.
[ Silence ]
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