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Unit VI: Roles of a Citizen
Key Understandings:
1. There is a balance between individual rights and the power of the government.
2. The Bill of Rights acts as a safeguard for individuals against arbitrary powers.
3. A successful democracy requires participation by an informed electorate.
4. People are born with natural rights that cannot be denied by other individuals or groups.
5. It is the people’s obligation to ensure that the government abides by the Constitution, either
through their elected representative or political participation.
6. The institutions of state and federal government can influence the rights and liberties of
American citizens
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Key Terms:
Individualism- the moral stance, political philosophy, ideology, or social outlook that
emphasizes "the moral worth of the individual". Individualists promote the exercise of one's
goals and desires and so value independence and self-reliance and advocate that interests of the
individual should achieve precedence over the state or a social group, while opposing external
interference upon one's own interests by society or institutions such as the government.
Collective action- traditionally defined as any action aiming to improve the group’s conditions
(such as status or power), which is enacted by a representative of the group. It is a term that
has formulations and theories in many areas of the social sciences including psychology,
sociology, political science and economics. Economic theory of collective action is concerned
with the provision of public goods (and other collective consumption) through the
collaboration of two or more individuals, and the impact of externalities on group behavior. It
is more commonly referred to as Public Choice
Natural Rights- Political theory that maintains that an individual enters into society with certain
basic rights and that no government can deny these rights. The modern idea of natural rights
grew out of the ancient and medieval doctrines of natural law, i.e., the belief that people, as
creatures of nature and God, should live their lives and organize their society on the basis of
rules and precepts laid down by nature or God. With the growth of the idea of individualism,
especially in the 17th cent., natural law doctrines were modified to stress the fact that
individuals, because they are natural beings, have rights that cannot be violated by anyone or
by any society.
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Key Terms:
Negative Rights- A right not to be subjected to an action of another person or group—a
government, for example—usually in the form of abuse or coercion. I terms negative rights,
others have a duty not to interfere. In other words these are rights that impose a negative duty
on someone else. Examples are free speech and religious freedom and other liberties.
Positive Rights- Positive rights impose duties or obligations on others to provide goods or
services, or to act in a certain way. Positive rights may include civil and political rights such as
police protection of person and property and the right to counsel, as well as economic, social
and cultural rights such as food, housing, public education, employment, national security,
military, health care, social security, internet access, and a minimum standard of living.
Positive rights often necessitate a contract.
Utility Maximization- Notion that people are generally motivated to do what is best for them, to
purchase the most satisfying goods, to make the decisions that do more good than harm, to
improve their overall living standards and well-being, that is, to maximize their utility.
Rational Decisions- A decision made by person that is intended to produce the greatest benefit
or satisfaction consistent with that person’s highest self-interest. Perceived rational decisions
derive from the information available to the person. There is debate between philosophers as to
whether or not it is even possible to determine the rationality of other people’s decisions.
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Key Terms:
Equilibrium- Balance between cost and benefits. In this unit we will look at the cost and
benefits to individuals and society.
Tyranny of the majority- The fear that in a democratic system where majority rules, that the
majority can use their voting advantage to advance their interests so far above those of an
individual or minority group as to constitute active oppression.
Tyranny of the minority- argument that narrow and well organized minorities are more likely
to assert their interests over those of the majority. Idea that when the benefits of political
action (e.g., lobbying) are spread over fewer agents, there is a stronger individual incentive to
contribute to that political activity. Narrow groups, especially those who can reward active
participation to their group goals, might therefore be able to dominate or distort political
process, a process studied in public choice theory.
Civil Rights (political rights)- Rights that protect individuals' freedom from unwarranted
infringement by governments and private organizations, and ensure one's ability to participate
in the civil and political life of the state without discrimination or repression.
Equality- All men are created equal in rights. There is great debate over the concepts of Equality
of opportunity vs . Equality of outcomes.
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Key People/Groups:
Franklin D. Roosevelt- President of the United States from 1933 to 1944. Under his watch the
New Deal and the 2nd New Deal were created and many of the policies are still around today.
John Locke- Enlightened philosopher who reasoned that man was had natural rights that
included; Life, Liberty, and Property. Man entered into a social contract with government to
protect his natural rights. Revolution was justified in the event that the government violated
man’s natural rights.
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Important Documents and outside readings:
The Bill of Rights
Written in 1789, the first 10 Amendments of the Constitution were written to prevent arbitrary
abuses by the national government against the people or the states.
FDR’s second Bill of Rights- President Roosevelt’s 1944 State of the Union address includes what
he called a second Bill of Rights. FDR’s second Bill of Rights are economic rights that FDR felt
that all citizens were entitled to enjoy.
The Economics of the Bill of Rights
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The basic unit of decision making whether socially, politically, or economically is the
individual. It is true that individuals may form groups, parties, businesses, and other types of
coalitions but each one of these examples comprises individual decision makers. As an
individual we have the ability to make decisions to improve out lives.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed
by their Creator with certain unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness”- Thomas Jefferson
Individual Worth
With these words Thomas Jefferson articulates the most fundamental and important concept of
individualism, each one of us has worth. We all have a life- of course, but consider the fact
that nobody’s life is exactly the same. People today and in the past have lived different types of
lives. Some have been rich while others lived in poverty. Some ended up being famous for
doing great deeds while others lived most of their live in jail. People have lived and still live
different types of lives, but there is one thing that every person who has ever walked the earth
has in common with each other. It is the simple truth that nobody lives forever. The resource
that is most scarce for each one of us is time.
When you analysis any decision that has an opportunity cost, it is in its most basic form a
measure of time. Our time is limited and is valuable.
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Liberty is the ability of each individual to have control over their own actions and to use their
limited time in a manner that best suits their wants.
Self-Interest (utility maximization)
Each individual has been gifted with natural abilities to utilize in a manner that suits their best
interest. We are entitled to the fruits of our labor. In a way each individual’s natural gifts are
their property. And as with other forms of property, we can use those gifts, we can trade the
results of those gifts, and we can waste those gifts. Each of use has been given the natural rights
to live freely and to make decisions to improve ourselves.
Rational Decisions
As individuals we have the opportunity to make decisions everyday. People make decisions
with the intention to improve themselves and to promote their interests. Perceived rational
decisions derive from the information available to the person. Of course nobody makes perfect
choices every time. And there is even debate between philosophers as to whether or not it is
even possible to determine the rationality of other people’s decisions. A rational decision is a
decisions that is consistent with the priorities of a person. Often inconsistencies arrive from
either imperfect information or when people are dishonest with themselves about what is really
important to them.
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Cooperation and Competition
We live in a society with other people who have just as much of a right to life, liberty, and the
pursuit of happiness and as a result an individual exercising his or her rights often comes in
competition with other individuals exercising their rights. Society has created institutions to
promote cooperation.
Equilibrium
As stated in the beginning of the course
there needs to be balance or equilibrium
between competing forces or in other words
competing decision makers.
What methods or institutions as society created to ensure cooperation between competing
decision makers? Think socially, politically, and economically.
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"We hold these truths to be self-evident; that all men are created equal, that they are endowed
by their Creator with certain unalienable rights, that among these are life, liberty, and the
pursuit of happiness. That, to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed."
The Declaration clearly reflects the founders' belief that governments are responsible for
protecting the "unalienable rights" of "life, liberty, and the pursuit of happiness." Since people
are clearly capable of abusing the "natural rights" of others, the government must protect the
rights of its citizens. But the founders also feared arbitrary abuses of our government against
the citizens.
THE ORIGINAL CONSTITUTION
Most of the framers believed that the basic "natural rights" were guaranteed by the original
Constitution before the Bill of Rights was added. Rights specifically mentioned in the body of the
Constitution are:
writ of habeas corpus
no bills of attainder
no ex post facto laws
trial by jury in federal courts in criminal cases
protection as citizens move from one state to another
no titles of nobility
limits on punishment for and use of the crime of treason
no religious oaths for holding federal office
guarantee of republican government for all states
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The Writ of Habeas Corpus
"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.“- Article 1 Section 9 of the Constitution.
Habeas Corpus literally means "produce the body." The writ is a court order requiring
government officials to present a prisoner in court and to explain to the judge why the person
is being held. Suspension of habeas corpus is a right of Congress, since the passage above
appears in Article One, which defines the powers of Congress.
Originally, the writ was only a court inquiry regarding the jurisdiction of the court that
ordered the individual's confinement, but today it has developed into a remedy that a prisoner
can formally request. A federal judge may order the jailer to show cause why the person is
being held, and the judge may order the prisoner's immediate release.
The Supreme Court under Chief Justice Rehnquist has severely limited the use of habeas corpus
partly because prisoners on death row have used it to delay their executions, sometimes for
years. Supporters of habeas corpus believe that judges should be allowed to use their own
judgment in issuing the writs because they are protecting constitutional rights.
Read Article 1 section 9 thinking in terms of trade-offs (cost/benefits) why Congress write that
the Writ of Habeas Corpus could be suspended if the public safety required it.
Relate this Guantanamo Bay.
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Ex Post Facto Laws and Bills of Attainder
The Constitution forbids both national and state governments from passing ex post facto laws.
An ex post facto law is a retroactive criminal law that affects the accused individual negatively.
Such laws may make an action a crime that was not a crime when committed, or they may
increase punishment for a crime after it was committed. On the other hand, the restriction does
not apply to penal laws that work in favor of the accused.
A bill of attainder is a legislative act that punishes an individual or group without judicial trial.
The Constitution forbids them because the founders believed that it is the job of the Courts, not
Congress, to decide that a person is guilty of a crime and then impose punishment.
Relate the concepts of perfect information and rational choice to Ex Post Facto Laws.
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The Bill of Rights
The overwhelming majority of court decisions that define American civil liberties are based on
the Bill of Rights, the first ten amendments added to the Constitution in 1791.
Even though most of the state constitutions in 1787 included separate bills of rights for their
citizens, the original Constitution mentioned only the rights listed above. These rights were
scattered throughout the articles, with most of the attention focused on defining the powers of
the branches of government, not on preserving individual rights. Many people were widely
suspicious of these omissions, and in order to gain ratification, the founders agreed to add ten
amendments in 1791, the Bill of Rights.
The Bill of Rights and the 14th Amendment were created to protect citizens from the use of
arbitrary powers.
Why are arbitrary powers so easy to abuse?
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The Bill of Rights and the 14th Amendment can be applied to our social, political, and economic
interactions. It is important to understand that government does not provide these rights to the
people, we are born with these rights. As a result, we never lose these rights. For example, we
have the same right to voice our displeasure with a politician as we do to voice our displeasure
to the manager of a restaurant. We don’t have to “check-in” or rights for some situations and
then pick them up late, we carry them with us every moment of our lives.
The following is an abridged version of the Bill of Rights
The First Amendment guarantees freedom of speech, press, assembly and petition. In addition, it
prohibits Congress from establishing a national religion.
The Second Amendment allows the right to bear arms.
The Third Amendment prohibits the quartering of soldiers in any house.
The Fourth Amendment restricts searches and seizures ("the right of the people to be secure in
their persons, houses, papers, and effects").
The Fifth Amendment provides for grand juries, restricts eminent domain (the right of the
government to take private property for public use), and prohibits forced self-incrimination
and double jeopardy (being tried twice for the same crime).
Amendment Six outlines criminal court procedures.
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Amendment Seven guarantees trial of jury in civil cases that involve values as low as twenty
dollars.
Amendment Eight prevent excessive bail and unusual punishment
The Ninth Amendment allows that Amendments 1-8 do not necessarily include all possible
rights of the people and that those rights are also protected.
The Tenth Amendment reserves for the states any powers not delegated to the national
government specifically in the Constitution.
The Fourteenth Amendment
Civil rights are also protected by the Fourteenth Amendment, with protects violation of rights
and liberties by the state governments.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Supplemental Reading: The economics of the Bill of Rights
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Although the Fourteenth Amendment was originally passed in the post-Civil War era
specifically to protect the rights of ex-slaves, the famous Section One protects many citizens'
rights from abuse by state governments Whereas the Bill of Rights literally applies only to the
national government, the Fourteenth Amendment is intended to limit the actions of state
governments as well. Section One includes:
a citizenship clause that protects "privileges and immunities"
a due process clause that prohibits abuse of "life, liberty, or property"
an equal protection clause that has been an important basis of the modern civil rights
movement.
One important consequence of the Fourteenth Amendment is the incorporation of the Bill of
Rights to apply to the states. The Bill of Rights originally only limited the powers of the federal
government. For example, in 1833 in Barron vs. Baltimore the U.S. Supreme Court ruled that
the Bill of Rights did not apply to state laws. It was assumed that the states’ bills of rights would
protect individuals from abuse by state laws. However, the 14th Amendment nationalized the
nature of civil rights with this statement:
“No State shall deprive any person of life, liberty, or property, without due process of law.”
Incorporation happened gradually over time through individual court decisions that required
states to protect most of the same liberties and rights that the Bill of Rights protects from federal
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abuse. These changes are reflected in numerous court decisions made between 1925 and 1969.
Gitlow v. New York (1925)Benjamin Gitlow was arrested and found guilty of breaking a New
York state sedition act when he passed out pamphlets that supported socialism and overthrow
of the government. Gitlow believed that his freedom of speech was violated, and the case was
appealed to the Supreme Court Even though the Court did not declare the New York law
unconstitutional, the majority opinion stated that fundamental personal rights were protected
from infringement by states by the Due Process Clause of the Fourteenth Amendment.
Gideon v. Wainwright (1963) Clarence Gideon appealed the decision of a Florida court to send
him to prison for breaking and entering a pool hall. He based his appeal on the right to counsel
(guaranteed in the Sixth Amendment) because in the original trial he could not afford to hire a
lawyer and was not provided one by the state court. The Supreme Court ruled in his favor,
again applying the Due Process Clause of the Fourteenth Amendment to require states to
provide counsel to anyone charged with a felony who was too poor to afford a lawyer.
Court Decisions
The Supreme Court continues to shape the definition and
application of civil rights and civil liberties. Although the
court has always played an important role in the protection
of civil rights and civil liberties, it has been particularly
active in the modern era since about 1937. The Supreme
Court sets precedents that influence legislation and
subsequent court decisions. The Court's influence is based
largely on judicial review, the power to judge the
constitutionality of a law or government regulation.
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Legislative Action
The Constitution, the Bill of Rights, and the Fourteenth Amendment protect individuals from
actions of government, but court decisions and legislation protect individuals from
discriminatory actions by private citizens and organizations. Legislative action is an essential
component of the modern civil rights era, although the courts took the earliest initiatives.
The activist court of the 1960s set precedents that broadly construe the commerce clause,
which gives Congress the power to regulate interstate and foreign commerce. As a result,
through laws like the Civil Rights Act of 1964, the legislature has played a major role in
combating discrimination.
The Constitution, the Bill of Rights, the Fourteenth Amendment, Supreme Court decisions, and
legislative actions all define the nature of civil rights and civil liberties in American society, but
issues arise which constantly cause reinterpretations of the sources. Conflicts arise largely
because issues often involve one citizen's or group's rights versus another's.
Remember the rights of one will sometimes compete the rights of other.
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First Amendment Liberties
"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 First Amendment
The First Amendment protects several basic liberties: freedom of religion, speech, press, petition,
and assembly. Interpretation of the amendment is far from easy, as court case after court case
has tried to define the limits of these freedoms. The definitions have evolved throughout
American history, and the process continues today.
Economically speaking we can view the First Amendment as the vehicle that establishes a “free
market” of ideas. When people can express themselves they impact others around them and as
a result also impact their own reputation. In
essence there is a free exchange of ideas, and
we mutually benefit. But as with free markets
there are also negative and positive
externalities. And just as with externalities in
the market, the government will involve itself
in dealing with externalities in the free speech
market.
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Freedom of Religion
The 1st Amendment protects freedom of religion in two separate clauses: the establishment
clause, which prohibits the government from establishing an official church, and the free
exercise clause that allows people to worship as they please. Surprisingly, the First Amendment
does not refer specifically to the "separation of church and state" or a "wall of separation." Those
phrases evolved later, probably from letters written by Thomas Jefferson, but the First
Amendment does prohibit the establishment of a government sponsored religion, such as the
Anglican Church in England.
We, as individuals, have freedom of conscience. Religious liberty, or freedom of conscience,
protects the beliefs of everyone, not just those of recognized faith communities. We are free to
worship —or not to worship — as we choose. The government may not tell us what church,
synagogue, mosque or temple to attend or whether, where and how we should pray.
As individuals, our ideas and beliefs are our own. We are free to develop and express our
thoughts. Through our free press, we have access to a vast range of information. We may
criticize our government if we see fit to do so. Judgments about ideas are for individuals to
make, not for government to decree.
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The Establishment Clause
The Everson v. Board of Education case in 1947 challenged a New Jersey town for reimbursing
parents for the cost of transporting students to school, including local parochial schools. The
plaintiffs claimed that since the parochial schools were religious, publicly financed
transportation costs could not be provided for parochial students. The challenge was based on
the establishment clause. The court in this case ruled against the plaintiffs, claiming that busing
is a "religiously neutral" activity, and that the reimbursements were appropriate. However, the
majority opinion declared that states cannot support one religion above another.
Aid to church-related schools has been a topic at issue with the establishment clause. In 1971
in Lemon v. Kurtzman, the Supreme Court ruled that direct state aid could not be used to
subsidize religious instruction. The Court’s opinion stated that government aid to religious
schools had to be secular in aim, and that an excessive government entanglement with religion
should be avoided.
As a result of the Lemon v. Kurtzman case, the Court created the Lemon Test to apply to other
cases concerning 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 government entanglement with religion." 22
However, in recent years the Court has relaxed restrictions on government aid to religious
schools. For example, in 1997 the Supreme Court overturned Aquila v. Felton, a 1985 decision
that ruled unconstitutional state aid for disadvantaged students who attend religious schools.
A current establishment clause issue is that of school vouchers that allow individuals to
purchase education at any school, public or private. School districts in several states, including
Florida, Ohio, and Wisconsin, have experimented with voucher programs. In 2002 the
Supreme Court held that the Cleveland voucher system was constitutional, although almost all
the students used the vouchers to attend religious schools.
The most controversial issue of the separation of church and state has been school prayer. The
first major case was Engle v. Vitale (1962). In this case, the Court banned the use of a prayer
written by the New York State Board of Regents. It read, Almighty God, we acknowledge our
dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our
country. Later decisions overturned laws requiring the saying of the Lord’s Prayer and the
posting of the Ten Commandments in classrooms.
Probably the most famous establishment clause case is Abington School District v. Schempp,
(1963), was a United States Supreme Court case in which the Court decided 8–1 in favor of the
respondent, Edward Schempp, and declared school-sponsored Bible reading in public schools
in the United States to be unconstitutional.
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In 1985, Wallace v. Jaffree banned Alabama’s moment of silence law that provided for a oneminute period of silence for meditation or voluntary prayer.
In recent years prayer outside the classroom has become an issue, with student initiated prayer
at graduation ceremonies and sports events at its focus. In 2000 the Supreme Court affirmed a
lower court ruling that school prayer at graduation did not violate the establishment clause, but
that prayer over loud speakers at sports events did.
The Free Exercise Clause
The free exercise clause does not allow any laws prohibiting the free exercise of religion. The
courts have interpreted the 14th Amendment to extend the freedom to protection from state
governments as well. Religions sometimes require actions that violate the rights of others or
forbid actions that society thinks are necessary. The Supreme Court has never allowed religious
freedom to be an excuse for any type of behavior. It has consistently ruled that people have the
absolute right to believe what they want, but not necessarily the right to religious practices that
may harm society.
In 1879, the Supreme Court heard a case between George Reynolds and the United States.
George Reynolds had multiple wives. He was a Mormon and claimed that his religion
compelled him to commit polygamy. He argued that U.S. law that outlawed polygamy violated
the free exercise clause of the first amendment.
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The Supreme Court ruled that freedom of religion protects the freedom of believe but not
always freedom of action. People cannot excuse themselves from the law because of their
religion. “Can a man excuse his [illegal] practices…because of his religious belief? The permit
this 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. Government could exist only
in name under such circumstances….”
In addition to polygamy, the use of poisonous snakes in religious rites, and prohibiting medical
treatment to children based on religious beliefs have been restricted by the Courts. On the other
hand, Courts have disallowed some government restrictions of religious exercise, such as
forcing flag salutes and requiring Amish parents to send their children to school after eighth
grade.
Freedom of Expression
As mentioned we have the religious freedom and the
freedom to have ideas and beliefs. The first
amendment protects conscience thought.
We also have the freedom to express this conscience
thought in the form of speech, symbols, the written
word, and any other method that we communicate.
But just like with expressing our religious beliefs
were are not allowed to break existing laws in the
name of free speech.
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We also have the right to assemble groups that
consist of people with the same thoughts. These
can take the form of political parties, interest
groups, advocacy groups, unions, marches and
protest. The message of these groups does not
need to be a popular message. Once again groups
are free to assemble as long as the group is not
violating existing established laws or violating the
rights of others.
We also have the right to petition our government
for redress of grievances. This means we have the
right to make a complaint to, or seek the assistance
of, our government, without fear of punishment or
reprisals. Petition can come in many forms such
as letters, websites, marches, protest, signs, and
lobbying.
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In this country we have freedom of press. The government has no right to exert any pressure
on the press or to interfere with their reporting. Additionally, the press is free to print and
report news without fear of punishment and reprisals.
“Where the press is free
and every man able to
read, all is safe.”- Thomas Jefferson
"The only security of all is in a
free press. The force of public
opinion cannot be resisted
when permitted freely to be
expressed. The agitation it
produces must be submitted
to. It is necessary, to keep the
waters pure." -Thomas Jefferson
To preserve the freedom of the human mind... and freedom of the press, every spirit should be
ready to devote itself to martyrdom; for as long as we may think as we will and speak as we
think, the condition of man will proceed in improvement." - Thomas Jefferson
The biggest debate over the freedom of the press is whether or not they should be able to report
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on information that they have received that has not been de-classified.
Political Speech
The First Amendment elevates core political speech above all other forms of individual
expression by prohibiting laws that regulate it unless the laws are narrowly tailored to serve a
compelling state interest.
Core political speech consists of conduct and words that are intended to directly rally public
support for a particular issue, position, or candidate. In one prominent case, the U.S. Supreme
Court suggested that core political speech involves any “interactive communication concerning
political change.” Meyer v. Grant, (1988). Discussion of public issues and debate on the
qualifications of candidates, the Supreme Court concluded, are forms of political expression
integral to the system of government established by the federal Constitution, Buckley v. Valeo,
(1976).
Thus, circulating handbooks and petitions, posting signs and placards, and making speeches
and orations are all forms of core political speech, so long as they in some way address social
issues, political positions, political parties, political candidates, government officials, or
governmental activities.
Known as “strict scrutiny” analysis, the application of this analysis by a court usually sounds the
death knell for the law that is being challenged. This application is especially true when the
core political speech is expressed in traditional public forums, such as streets, sidewalks, parks,
and other venues that have been traditionally devoted to public assembly and social debate.
Examples of nonpublic forums include household mail boxes, military bases, airport terminals,
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indoor shopping malls, and most private commercial and residential property.
There is in essence a free marketplace of ideas in this nation. In the "marketplace of ideas" the
truth will emerge out of the competition of ideas in free and transparent public discourse.
Similarly to how the free trade of goods and services increases the standard of living in society,
the free trade of ideas also improves the standard of living in society. Whether it is religion,
ideas, or political speech, the marketplace of ideas favors a marketplace of freedom rather than
state restrictions and forbiddance of incompatible beliefs.
Consider the economic concepts of division of labor and specialization. Aren’t all of our lives
improved by others who specialize in a topic and then are allowed to share their knowledge
with others?
Similar to goods and service, we may opt to accept or reject ideas- its our choice.
But can there be market failure in the “marketplace of ideas?” Yes!!!
In terms of positive externalities, if you recall, public goods are the government’s response to
suppliers unwilling to provide a needed product due to the free rider scenario (review unit 2).
There could be a similar situation with ideas, for example if an individual develops a new drug
or a new invention that could improve society. The individual may be less willing to share the
idea if he or she cannot be rewarded. To prevent this situation from occurring the government
has come up with patent and copyright laws that are intended to protect to idea for a specific
period of time.
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Recall that the concept of negative externalities such as pollution arise when a 3 rd party suffers
a portion of the cost of an exchange that they did not agree to participate in. The same can
occur in the free marketplace of ideas.
If someone stands up and yells, “fire” in
a movie theater or if people engage in
an exchange of obscene words at a
sporting event there are other people
impacted. There are laws that have
been created to protect against the
external costs exerted on unwilling
participates in the free market of ideas.
The first and foremost protection against irresponsible ideas and speech is reputation. When a
person claims, “I have freedom speech.” In most cases they are correct, but they also have a
reputation that may take years to build and a moment to destroy. Each individual needs to
weigh the costs and benefits to what they say and what groups they join and support.
But what if protecting a reputation isn’t enough motivation? Then laws need to be created to
protect individuals.
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Free Speech and National Security and Public Welfare
The Court distinguishes between language that was merely critical of the government and that
which was directly a "clear and present danger" to national security. The "clear and present
danger" test became a standard by which to balance national security and freedom of speech.
Additionally people can be punished fro speech that willfully advocates the overthrow of the
government. People can also be punished for membership in a group that advocated the
overthrow of government ( the membership clause).
Hate Speech
Hate speech is speech. But according to the
Court ruling in Brandenburg vs. Ohio, speech
would have to be judged as inciting "imminent"
unlawful action in order to be restricted. The
case involved a Ku Klux Klan leader convicted
of attempting to incite mob action when he said
"We'll take the (expletive deleted) street later."
The conviction was overturned by the Supreme
Court because Brandenburg did not call for an
"imminent" action.
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Liable and Slander
Libel, a written statement that attacks another person's character, is not automatically protected,
although it is very hard to sue for libel. Public figures must prove that a statement is not only
false but that it intended "actual malice," a condition that is very hard to define. Similarly,
slander is a spoken statement that attacks another person’s character.
Obscenity
Obscenity is not protected, but the Court has always had a difficult time defining obscenity. The
current Court leaves local governments to decide restrictions for hard-core pornography, but
of they choose to restrict it, they must meet some strict constitutional tests. One common
reaction has been for a local government to establish areas where pornography can and can't
be sold. A new issue concerns pornography on the internet. In 1997 the Supreme Court ruled
the Communications Decency Act unconstitutional because it infringed too much on free
speech
Symbolic Speech
Symbolic speech is a legal term in United States law used to describe actions that purposefully
and discernibly convey a particular message or statement to those viewing it. Symbolic speech
is recognized as being protected under the First Amendment as a form of speech, but this is not
expressly written as such in the document. The first amendment does not protect symbolic
speech that is in itself an illegal action such as murder, theft, or in Virginia cross burning.32
The following pages will cover key 1st Amendment cases that occurred in schools.
The information comes
http://www.firstamendmentschools.org/freedoms/case.aspx?id=404
Tinker vs. Des Moines
Facts:
Several students planned to wear black armbands to school to protest U.S. involvement in the
Vietnam War and mourn the dead on all sides. School officials learned of the impending protest
and quickly adopted a no-armband rule (even though they allowed students to wear other
symbols). The students nonetheless wore the armbands to school. School officials suspended
them for violating school policy. The students sued, claiming violation of their First Amendment
rights.
Issue:
Whether school officials can censor non-violent student speech without showing that the
speech will cause a material and substantial disruption of school educational activities or
collide with the rights of others.
Holding:
By a 7-2 vote, the Court held that school officials cannot censor student speech unless school
officials reasonably forecast that the speech will cause a material and substantial disruption of
school activities or collide with the rights of others. Mere apprehension of disturbance or 33
an
offense given is not enough.
Reasoning:
Students do not lose their constitutional rights at the schoolhouse door. School officials’ duties
to provide a safe learning environment must be balanced against students’ free-expression
rights. School officials may not censor student speech because of an "undifferentiated fear or
apprehension." They must reasonably forecast that the student speech will cause a substantial
disruption or invade the rights of others. In this case, "the record does not demonstrate any facts
which reasonably may have led school authorities to forecast substantial disruption of or
material interference with school activities, and no disturbances or disorders on the school
premises in fact occurred."
Majority:
"It can hardly be argued that either
students or teachers shed their
constitutional rights to freedom of
speech or expression at the schoolhouse
gate." (Justice Abe Fortas)
Dissent:
This case will help usher in "a new revolutionary era of permissiveness in this country fostered
by the judiciary. . . I wish, therefore, wholly to disclaim any purpose on my part to hold that the
Federal Constitution compels the teachers, parents, and elected school officials to surrender
control of the American public school system to public school students." (Justice Hugo Black)
Please write a 6 word headline
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Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
Facts:
A public high school student delivered a nominating speech on behalf of another student at a
student assembly. The speech contained elaborate and immature sexual innuendo. The school
suspended the student for violating the school’s no-disruption rule, which prohibited “obscene,
profane language.” The student contended that the suspension violated his First Amendment
rights because his speech caused no disruption of school activities within the meaning of
Tinker.
Issue:
Whether school officials may prohibit a vulgar and lewd student speech at a student assembly
even if the speech does not create a substantial disruption.
Holding:
In a 7-2 decision, the Court held that school officials may prohibit student speech before a
student assembly that is vulgar, lewd and plainly offensive.
Reasoning:
Public school officials have a responsibility to “inculcate values” into students. “Surely, it is a
highly appropriate function of public school education to prohibit the use of vulgar and
offensive terms in public discourse.” The vulgar sexual allusions of the student in this case
differ markedly from the pure political message of the black-armband case of Tinker. School
officials were not censoring speech based on viewpoint. Rather, they were punishing the 35
student for using vulgar and lewd terms at a student assembly.
Majority:
“The undoubted freedom to advocate unpopular and controversial views in schools and
classrooms must be balanced against the society's countervailing interest in teaching students
the boundaries of socially appropriate behavior. Even the most heated political discourse in a
democratic society requires consideration for the personal sensibilities of the other participants
and audiences.” (Chief Justice Warren Burger)
Dissent:
“It does seem to me, however, that if a student is to
be punished for using offensive speech, he is entitled
to fair notice of the scope of the prohibition and the
consequences of its violation. The interest in free
speech protected by the First Amendment and the
interest in fair procedure protected by the Due Process
Clause of the Fourteenth Amendment combine to
require this result.” (Justice John Paul Stevens)
Read more about this case at firstamendmentcenter.org
Please write a 6 word headline
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Hazelwood Sch. Dist.. v. Kuhlmeier, 484 U.S. 260 (1988)
Facts:
Students produced a school newspaper as part of their journalism class. One issue was to
include student-written articles about teen pregnancy and the impact of divorce on kids. The
principal objected to the stories, believing they were inappropriate for the younger students and
unfair to the pregnant students who might be identified from the text of the article. He also
believed that the parents of the students quoted in the
divorce article should have been given an opportunity
to respond. He deleted the articles from the school
newspaper. Three students sued, claiming a violation
of their First Amendment rights under the Tinker
standard.
Issue:
Whether school officials can censor school-sponsored
student publications when they believe material is
inappropriate for younger students, or for reasons
other than the prospect of material and substantial disruption of the educational process.
Holding:
By a 5-3 vote, the Court held that school officials can censor school-sponsored student
publications when they have purposes reasonably related to legitimate educational concerns.
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Reasoning:
There is a fundamental difference between private student speech and student speech that
occurs in school-sponsored activities. Educators have greater authority to control schoolsponsored student speech because the public might reasonably believe such speech bears "the
imprimatur of the school." Educators "do not offend the First Amendment by exercising editorial
control over the style and content of student speech in school-sponsored expressive activities so
long as their actions are reasonably related to legitimate pedagogical concerns." A publication
created as part of a class is clearly school-sponsored and a part of the curriculum. The school
never adopted a policy whereby the publication simply became a public forum open to any and
all views. The school administration thus properly acted as editor of the newspaper.
Majority:
"A school must also retain the authority to refuse to sponsor student speech that might
reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or 'conduct
otherwise inconsistent with the shared values of a civilized social order,' or to associate the
school with any position other than neutrality on matters of political controversy." (Justice
Byron White)
Dissent:
The dissent argued that the majority erred in making a distinction between student-initiated
and school-sponsored speech. The Tinker standard of material and substantial disruption
should govern all student free-expression cases. "The case before us aptly illustrates how
readily school officials (and courts) can camouflage viewpoint discrimination as the 'mere'
protection of students from sensitive topics." (Justice William Brennan)
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Please write a 6 word headline
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
Facts:
The West Virginia Board of Education adopted a measure requiring that all public school
students salute the flag and recite the Pledge of Allegiance. Students who did not participate
could be expelled; their parents could even lose
custody of them. A group of Jehovah's Witnesses
challenged the law on First Amendment grounds.
They argued that the forced flag salute conflicted
with their religious beliefs against idol worship
and graven images, and therefore violated their
free exercise of religion and freedom of speech
rights under the First Amendment.
Issue:
Whether a compulsory flag-salute law for school children violates the First and Fourteenth
Amendments.
Holding:
By a 6-3 vote, the Court held that school officials do violate the First Amendment by compelling
students to salute the flag and recite the Pledge of Allegiance.
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Reasoning:
The First Amendment prohibits government officials from compelling individuals to speak or
espouse orthodox beliefs that are at odds with their conscience and values. “There is no doubt
that, in connection with the pledges, the flag salute is a form of utterance.” The purpose of the
First Amendment is to ensure that individuals have an individual sphere of freedom of thought
and belief that the government cannot invade. “Authority here is to be controlled by public
opinion, not public opinion by authority.”
Majority:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.” (Justice Robert Jackson)
Dissent:
"An act compelling profession of allegiance to a religion, no matter how subtly or tenuously
promoted, is bad. But an act promoting good citizenship and national allegiance is within the
domain of governmental authority and is therefore to be judged by the same considerations of
power and of constitutionality as those involved in the many claims of immunity from civil
obedience because of religious scruples." (Justice Felix Frankfurter)
Read more about this case at firstamendmentcenter.org:
Please write a 6 word headline
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Abington School District v. Schempp, 374 U.S. 203 (1963)
Facts:
Pennsylvania state law required that "at least ten verses from the Holy Bible shall be read,
without comment, at the opening of each public school on each school day." Two families sued,
claiming this violated the Establishment Clause of the First Amendment.
Issue:
Whether an official reading at the beginning of each school day of Bible passages, without
further comment, violates the Establishment Clause.
Holding:
By a vote of 8-1, the Court held that state-sponsored devotional Bible readings in public schools
constitute an impermissible religious exercise by government.
Reasoning:
The Court found that state-sponsored devotional exercises violate the Establishment Clause. The
Constitutional defects are not corrected by allowing an opt-out provision. The Establishment
Clause constrains government from involving itself in religious matters. Therefore, government
action that promotes or inhibits religion violates the Constitution. The state may not draft or
conduct religious prayers in schools filled with captive audiences of children.
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Majority:
"In addition, it might well be said that one’s
education is not complete without a study of
comparative religion or the history of
religion and its relationship to the
advancement of civilization. It certainly
may be said that the Bible is worthy of study
for its literary and historic qualities. Nothing
we have said here indicates that such study
of the Bible or of religion, when presented
objectively as part of a secular program of
education, may not be effected [sic]
consistently with the First Amendment. But
the exercises here do not fall into those categories. They are religious exercises, required by the
States in violation of the command of the First Amendment that the Government maintain strict
neutrality, neither aiding nor opposing religion." (Justice Tom Clark)
Please write a 6 word headline
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The 2nd Amendment
"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.“- 2nd Amendment
Such language has created considerable debate regarding the Amendment's intended scope. On
the one hand, some believe that the Amendment's phrase "the right of the people to keep and
bear Arms" creates an individual constitutional right for citizens of the United States. Under this
"individual right theory," the United States Constitution restricts legislative bodies from
prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and
restrictive regulation presumptively unconstitutional.
On the other hand, some scholars point to the prefatory language "a well regulated Militia" to
argue that the Framers intended only to restrict Congress from legislating away a state's right to
self-defense. Scholars have come to call this theory "the collective rights theory." A collective
rights theory of the Second Amendment asserts that citizens do not have an individual right to
possess guns and that local, state, and federal legislative bodies therefore possess the authority
to regulate firearms without implicating a constitutional right.
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Stipulations of the 2nd Amendment:
The Second Amendment to the United States Constitution protects the right of the individual to
keep and bear firearms.
The right to arm oneself is viewed as a personal liberty to deter undemocratic or oppressive
governing bodies from forming and to repel impending invasions. Furthermore, the right to
bear arms was instituted within the Bill of Rights to suppress insurrection, participate and
uphold the law, enable the citizens of the United States to organize a militia, and to facilitate the
natural right to self-defense.
The Second Amendment was developed as a result of the tyrannous rule of the British
parliament. Colonists were often oppressed and forced to pay unjust taxes at the hand of the
unruly parliament. As a result, the American people yearned for an Amendment that would
guarantee them the right to bear arms and protect themselves against similar situations. The
Second Amendment was drafted to provide for the common defense and the general welfare of
the United States through the ability to raise and support militias.
See more at: http://constitution.laws.com/2nd-amendment#sthash.Gd0ndMRp.dpuf
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Court Cases Tied into the Second Amendment
In District of Columbia v. Heller the Supreme Court ruled that the Second Amendment protects
an individual’s right to possess a firearm to use for traditionally lawful purposes, such as
defending oneself within their home or on their property. The court case ruled that the
Amendment was not connected to service in a militia.
Controversy
The gun debate in the United States widely revolves around the intended interpretation of the
Second Amendment. Those who support gun rights claim that the founding fathers developed
and subsequently ratified the Second Amendment to guarantee the individual’s right to keep
and bear arms. Those who want more stringent gun laws feel that the founding fathers directed
this Amendment solely to the formation of militias and are thus, at least by theory, archaic.
See more at: http://constitution.laws.com/2nd-amendment#sthash.Gd0ndMRp.dpuf
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The 4th Amendment
“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.”
THE FOURTH AMENDMENT AND SEARCH AND SEIZURE
Freedom from unreasonable search and seizure is guaranteed by the Fourth Amendment. To
prevent abuse by police, the Constitution requires that searches of private property are
permissible only if probable cause exists that indicates that a crime may have taken place.
The amendment is enforced by the exclusionary rule. Established by Weeks v. United States
(1914), this rule holds that evidence obtained through a Fourth Amendment violation is
generally inadmissible at criminal trials. Evidence discovered as a later result of an illegal
search may also be inadmissible as "fruit of the poisonous tree" unless it would have inevitably
been discovered by legal means.
Currently, the biggest fourth amendment issue is the debate over national security. The NSA,
the Patriot Act and the 4th amendment have come in direct conflict with each other.
Read more: http://www.aclu.org/national-security/surveillance-under-usa-patriot-act
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An important limitation was set on police searches by Mapp v. Ohio, a 1961 case in which the
police broke into the home of Dollree Mapp, a woman under suspicion for illegal gambling
activities. Instead, they found obscene materials and arrested Mapp for possessing them. She
appealed her case, claiming that the Fourth Amendment should be applied to state and local
governments, and that the evidence had been seized illegally. The police, she claimed, had no
probable cause for suspecting her for the crime she was arrested for. The court ruled in her
favor, thus redefining the rights of the accused.
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The individual most basic decision maker in society politically and economically
Individual
Self Worth- we all have equal self worth, the product of work is not always equal
Self Interest (maximize utility)
Rational Decisions- making informed decisions that are consistent with priorities, only the individual can truly know what is rational for himself
or herself
Conflict and Cooperation, when rights conflict
Equilibrium (competing forces balance) cost = benefit
In this situation the private cost= portion of shared social benefit
Or private benefit= portion of share social cost
Natural rights- negative rights
The impact of society - when rights compete
Individual rights vs collective action
limiting natural rights and providing positive rights
Fear tyranny
Tyranny of the majority
Tyranny of the minority
Basic natural rights outlined in the bill of Rights and the 14th amendment
For the following rights write about all sub topics if it applies.
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1st amendment
Define and outline
An economic interpretation - free market of ideas, public good, cost/benefits
In society
In school
In the economy
In political
Limitations (maybe covered in economic)
2nd amendment
Same
4, 5,6,7,8, 10, 14
9th - only explain - Madison's fear of the unintentional outcome of a list of rights - only rights recognized
Equality
All men are created equal
What does equal mean ?
Equal opportunity not equality in results
Positive rights
Fdr second bill of rights - agree disagree?
America moving forward and your role
Civil rights and civil liberties
Economic interpretation - when can you rights be limited
Social rights and responsibilities
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Economic decision makers
Social decision makers- government or free market (reputation) enforcement
Political decision makers
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Bastait on negative and positive rights
“
M. de Lamartine wrote me one day: "Your
doctrine is only the half of my program;
you have stopped at liberty; I go on to
fraternity." I answered him: "The second
half of your program will destroy the first
half." And, in fact, it is quite impossible
for me to separate the word "fraternity"
from the word "voluntary." It is quite
impossible for me to conceive of
fraternity as legally enforced, without
liberty being legally destroyed, and justice
being legally trampled underfoot.
Nineteenth-century philosopher Frederic Bastiat summarized the conflict between these negative and positive rights by saying:
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