Civil Liberties and Congress

Civil Liberties

Civil liberties are protections against the government, defining what the government cannot do. Rights, on the other hand, are protections by the government, requiring government action. These rights guarantee the safety of people, opinions, and property from arbitrary acts of government that may threaten them, including freedom of speech, religion, and the press, the right to bear arms, due process, voting, prohibition of discrimination, and education.

Civil Liberties and the Constitution

The Constitution does not fully address civil liberties. Article 1, Section 9, includes:

• Prohibition of bills of attainder: Laws that convict/punish someone for a crime without a trial.
• Prohibition of ex post facto laws: Laws that punish crimes that were not crimes when committed.
• Limits on suspending the writ of habeas corpus: Used to demand a neutral judge decide whether someone has been lawfully detained. Examples include Lincoln during the Civil War, FDR during WWII with Japanese Americans, and Bush and Obama regarding suspected terrorists.

Federalists initially believed outlining specific rights was unnecessary. Anti-Federalists argued for restraining government power. To ensure ratification, Federalists agreed to consider a Bill of Rights, which was ratified in 1791.

Extending the Bill of Rights to the States

States have their own bills of rights. In 1897, the Supreme Court ruled that provisions of the Bill of Rights must be upheld by the states through selective incorporation. This includes landmark cases like McDonald v. Chicago (2010) and Near v. Minnesota (1931).

Freedom of Religion

The Establishment Clause prohibits Congress from creating or promoting a state-sponsored religion and forbids government from favoring one set of religious beliefs over others.

Examples of religion and government interaction include conflicts where the separation between church and state is not absolute.

Lemon v. Kurtzman (1971)

In Lemon v. Kurtzman (1971), concerning aid to parochial schools, the Lemon Test was established:

1. The statute must have a secular legislative purpose.
2. Its principal or primary effect must neither advance nor inhibit religion.
3. The statute must not foster excessive government entanglement with religion.

If any of these criteria are violated, the statute is deemed unconstitutional. However, Zelman v. Simmons-Harris (2002) found that vouchers are constitutional.

Free Exercise

Free Exercise ensures individual worship is free from government interference and regulates government suppression of religious beliefs and practices. Conscientious objectors claim the right to refuse military service based on freedom of thought, conscience, or religion. Gillette v. United States states that a conscientious objector must be opposed to serving in any war, not just some wars.

Religious Freedom Restoration Act (RFRA)

The Religious Freedom Restoration Act (RFRA) of 1993 is relatively uncontroversial for individuals but sparks controversy regarding businesses. Burwell v. Hobby Lobby (2014) and cases in 2015 compelled businesses providing wedding services to serve same-sex weddings. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) ruled in favor of the baker's rights.

Freedom of Speech

Government censorship was once common, peaking during WWI. Schenck v. US (1919) involved a violation of the Espionage Act of 1917. The “Clear and present danger” standard emerged, considering whether speech presents a dangerous or merely inconvenient situation. Circumstances could render speech normally permissible a danger to national security.

Brandenburg v. Ohio (1969)

Speech or writing that constitutes a direct call or plan to imminent lawless action could be suppressed, but advocating hypothetical revolution is not enough.

Symbolic Speech

Symbolic speech includes limitations such as burning draft cards and threats. Burning the American Flag raises questions about amending the Constitution to protect the U.S. flag from desecration and whether other symbols should also be protected.

Speech not protected includes:

• Incitement of a criminal act
• “Fighting words”
• Genuine threats
• Threatening symbolic speech
• Libel
• Slander
• Obscenities

Freedom of the Press

Freedom of the Press grants news organizations constitutional protection as private institutions. Prior Restraint, or censorship before printing or broadcasting, has been rejected by the Court, as seen in Near v. MN (1931) and the “Pentagon Papers” case. New York Times v. Sullivan (1964) addresses reckless disregard for the truth.

Freedom of Petition & Assembly

The right to assemble peaceably, associate, and petition are subject to certain constraints to balance them against the interests of public order.

Right to Bear Arms

There is ongoing debate over whether this is a personal right or protection for public defense and the conflict between individual gun ownership and gun control has been an important political issue.

Historical Context

1930s saw a gradual restriction of gun ownership. The 1960s brought stricter laws regulating trace and selling of guns. 1980s introduced background checks. US v. Miller upheld sawed-off shotguns as prohibited in the 1934 National Firearms Act because they do not relate to promoting a “well-regulated militia.”

Landmark Cases

(2008) DC v. Heller affirmed that some gun control laws violate the 2nd Amendment, protecting an individual’s right to keep and bear arms “for traditionally lawful purposes, such as self-defense within the home.” McDonald v. Chicago (2010) incorporated the right to bear arms as a fundamental right, but it is not absolute.

Third Amendment

“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”

Fourth Amendment

Protects against overzealous law enforcement efforts by ensuring they have a good reason before intruding on people’s lives. Limits on searches and seizures, requiring a search warrant and probable cause. Mapp v. Ohio (1961) established that evidence obtained without a warrant could not be used in a state criminal trial through the exclusionary rule. Exceptions are “good faith” and “inevitable discovery.”

Fifth Amendment

The Fifth Amendment covers rights of suspects, including:

• Grand jury for felonies (not applicable to states; members of armed forces not entitled).
• Double Jeopardy: Cannot be prosecuted for a crime if found not guilty, prohibiting a second prosecution at the same level of government.
• Self-incrimination: Right to remain silent, as established in Miranda v. AZ (1966).
• Eminent domain: Traditionally used to obtain property for transportation corridors, recently used for economic development.
• Kelo v. City of New London (2005): Court sided with the city to take homes for a large pharmaceutical company’s corporate campus.
• Border wall.

Sixth Amendment

Covers provisions governing criminal trials, including a speedy, public trial by impartial jury. Plea bargains are common, with most declining the right to a jury trial. The right to confront witnesses and legal representation were affirmed in Gideon v. Wainwright (1963).

Seventh Amendment

Concerns rights in civil disputes, requiring all trials in civil cases to have a jury unless both sides waive the right.

Eighth Amendment

Addresses bail, preventing excessive amounts, and bans “cruel and unusual punishments.” Various tortures are banned, with no definitive test for what constitutes cruel and unusual punishment.

Tenth Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Focuses on power, allowing states to act where the federal government does not. Nullification involves blocking federal government laws deemed to exceed constitutional powers.

Ninth Amendment

Ensures the listing of freedoms and rights in the Bill of Rights is not exhaustive. Common-law and natural rights are inherited from the laws, traditions, and past court decisions of England, including the right to marry, seek employment and education, and have children.

Right to Privacy

The Constitution does not mention a right to privacy. However, the Supreme Court has extended protection against government interference in private matters, including contraception and abortion.

Roe v. Wade (1973)

Roe v. Wade (1973) established the right to privacy prohibits states from restricting abortion availability during the first three months of pregnancy.

Planned Parenthood v. Casey (1992)

Planned Parenthood v. Casey (1992) rejected the trimester framework, replacing it with the undue burden test, allowing restrictions prior to viability that are not “substantial obstacles” to women seeking abortion. Upheld waiting periods and parental consent but struck down the requirement for married women to notify their spouse.

Dobbs v. Jackson Women’s Health Org (2022)

Old R d C (Dobbs v. Jackson Women’s Health Org (2022))

Other Considerations

McCarthy era: The 1940 Smith Act was used to forbid attempts to advocate violent overthrow of government. The USA Patriot Act, passed after the 9/11 terrorist attacks, gives law enforcement officials sweeping authority, with supporters emphasizing the need to find terrorists and opponents feeling it undermines civil liberties. Carpenter v. United States (2018) ruled that, under the 4th Amendment, police need a search warrant to gather phone location data as evidence.

The Bill of Rights guarantees and protects individuals from government.

Congress

What is Congress? What motivates them? How do they make laws?

Legislative Branch

Divided into two chambers: the House of Representatives, where members represent districts within states, and the Senate, where members represent the entire state. The Constitution gives Congress the power to make laws, declare war, raise and provide public money, impeach federal officers, approve presidential appointments, approve treaties, and conduct oversight and investigations.

The Two Chambers of Congress

The U.S. House has a 2-year term, 435 members, and a constituency size of approximately 761,000. The U.S. Senate has a 6-year term, 100 members, and a constituency size averaging 6 million.

Demographics

The House consists of 218 Republicans and 215 Democrats, while the Senate has 47 Democrats, 53 Republicans, and 2 Independents. The longest-serving members include Sen. Chuck Grassley (R-IA), Rep. Hal Rogers (R-KY), and Rep. Chris Smith (R-NJ). The youngest members are Rep. Maxwell Frost (D-FL) and Sen. Jon Ossoff (D-GA). The average age in the House is 57.9 years and in the Senate is 64 years. Most members have a college education, with dominant professions in public service/politics, business, and law.

Women in Congress

The percentage of women in the U.S. Congress increased from 23.7% in 2020 to 26.9% in 2021.

Diversity in Congress

Racial and ethnic diversity is growing, with increasing numbers of Black, Hispanic, Asian American, and American Indian and Alaska Native members. The number of openly LGB members of Congress has also increased over time.

Generational Composition

Younger generations make up a growing share of Congress, especially in the House.

Motivations of Legislators

Legislators have three primary goals: reelection, good policy, and power. According to Mayhew, members are single-minded seekers of reelection, while Fenno argues that all three goals are important because people enter politics with goals beyond career maintenance.

Steps Toward Re-Election (Mayhew)

To win reelection, members engage in advertising, credit claiming, and position taking. Advertising disseminates one’s name among constituents, credit claiming generates the belief that one is personally responsible for causing the government to do something desirable, and position taking involves public declarations on issues of interest.

Structures of Congress

Bicameralism divides legislators into two separate assemblies. The Virginia Plan proposed each chamber be based on population, while the New Jersey Plan suggested a single chamber with equal representation. The Great Compromise created two chambers: an upper house with 2 members from each state and a lower house with members proportional to population.

House Apportionment

Apportionment divides representation based on population, determined using Census data collected every 10 years. Reapportionment involves redrawing congressional districts based on Census data. Gerrymandering is the manipulation of legislative district boundaries to favor a particular candidate.

The Committee System

Committees divide work based on specialization. Standing committees are core, permanent committees, with 20 in the House and 16 in the Senate. Joint committees are informational, with members from both the House and the Senate. Conference committees reconcile different bills passed in both chambers. Special (select) committees are temporary committees set up to address specific topics.

Parties in Congress

The roles of majority and minority parties in Congress are significant.

Party Leaders

The Speaker of the House is the presiding officer elected by the majority party, exerting substantial control over the legislative agenda. The Senate Majority Leader sets the agenda but has less control than the Speaker, while the Senate Minority Leader leads the minority party, working closely with the Majority Leader.

Leadership Selection

Leaders are chosen based on ideology, proximity to the party median, and ability to redistribute campaign funds, as seen in the case of Pelosi.

Party Control

The majority party in the House exerts stronger control over the agenda, committee assignments, and floor debates/votes. In the Senate, the filibuster is a tactic used to prolong debate and delay or prevent action on a bill, requiring a cloture vote to end.

Ideological Gap

The ideological gap between parties is widening, measured by NOMINATE scores, where -1 represents most liberal and 1 represents most conservative.

Polarization

Polarization has not necessarily led to an increase in extreme policy outcomes, with policy changes often resulting from unguided policy changes.

Impeachment

Impeachment is the first major step required to remove a government official, initiated by the House and acted upon by the Senate. It does not refer to the removal of an official but represents the beginning a 2-step process.

The House holds a formal inquiry, and the Judiciary Committee prepares Articles of Impeachment, which are voted on by the House. If passed, the Articles move to the Senate, which acts as the courtroom, jury, and judge. A 2/3 Senate majority is required to convict, leading to removal from office and disqualification from holding future government positions.

Models of Representation

Members of Congress may follow the delegate model, enacting the wishes of constituents, or the trustee model, using their own judgment and views. The politico model involves acting as either a trustee or delegate based on rational political calculations.

The Personal Vote

The personal vote is the share of votes earned that are unique to a candidate. Members of both chambers do casework, providing responses or services to constituents who request assistance.

Making Laws

The process involves introducing legislation, committee assignment, committee hearings, bill reporting and debate, amendment process, the vote, reconciling differences, sending to the White House, and eventually the bill goes to the president. Check out Congress.gov to keep up with current legislation.

A Primer on American Independence

Enlightenment thinkers influenced American independence with ideas such as natural rights, social contract theory, and the separation of governmental powers.

The Tea Act of 1773 led to the Boston Tea Party and Continental Congresses, culminating in the Declaration of Independence on July 4th, 1776, which officially declared independence from England.

Articles of Confederation

The Articles of Confederation (1781-1787) established a “league of friendship” among the states but suffered from fatal flaws such as no power to tax, no executive branch, and no national court system.

The Constitution

Forms of government are characterized by power source: autocracy, oligarchy, democracy, and anarchy. Forms are also associated with ideology: monarchy and republic.

The six principles of the Constitution are limited government, republicanism, checks and balances, federalism, separation of powers, and popular sovereignty.

Ratification

Federalists favored ratification, while Anti-Federalists opposed it. Federalist #10 addresses how to protect the rights of the minority in a majority republic.

Federalist #51 explains how separation of powers with checks and balances protects liberty, with judges needing special qualifications and lifetime tenure to ensure independence.

The Constitution fixed the problems of the Articles by creating three branches of government, giving Congress power to tax, and establishing a bicameral Congress.

Legislative Branch

The Constitution gives Congress the power to:

• Make laws
• Declare war
• Tax (must come from the House)