Introduction
As Daniel Patrick Moynihan famously observed, we are all entitled to our own opinions, but not to our own facts. Arguments based on manufactured histories or distorted realities are intellectually dishonest and ultimately unproductive—and they are particularly destructive in an era when there is no universally trusted “mainstream” media to correct spin, misrepresentations and outright lies.
What we are trying to do with this brief publication is identify some of the most common areas of confusion and/or misunderstanding—those distortions of accepted history, economics and/or science—that seem most often to characterize our contemporary political/social arguments, and to distinguish between facts that have been documented and agreed to by responsible people of all ideological perspectives, and the different conclusions and interpretations that may be drawn from those facts. To use an analogy from the courtroom, two sides to a conflict may “stipulate” to what happened, but then proceed to argue in good faith about what those agreed-to stipulations really tell us.
Why do we say that agreement on definitions and documented facts is important? Take the recent debates about the Affordable Care Act—aka “Obamacare”—as an example. People may have very different opinions about the wisdom of the policy choices involved, but our decision to repeal, implement or amend the Act depends upon agreement about what it actually says and does. If opposition to the policy is based upon “death panels” that don’t exist, or its defense is based upon an insistence that the individual mandate isn’t government coercion, the likelihood of reasoned discussion—let alone agreement on policy changes—disappears.
Or take the ongoing battles over religion in the nation’s schools. There are genuine arguments to be made about the proper application of the Establishment Clause in the context of public education. But just as we can’t have those reasoned disputes with people who insist that the First Amendment doesn’t require separation of church and state, we cannot have productive conversations with people who insist that all the Founders were Deists who believed religion was unimportant.
Basing one’s arguments on verifiable fact and accepted history actually helps people make more persuasive cases for their own points of view. We all encounter people who have a legitimate point worth considering, but who—because they are basing their argument on erroneous facts, or demonstrating a lack of understanding of important basic concepts—get dismissed out of hand. Credibility requires verifiable evidence. You might want to use that perfect quote from Thomas Jefferson that you saw on the Internet, but if it is bogus, you’ve just undermined your own position. Defending alternate realities is like arguing about whether a fork is a spoon—it doesn’t get you any closer to a useful resolution.
This brief pamphlet contains basic facts about the U.S. Constitution, economic concepts and systems and the nature of science and the scientific method that every citizen should know—facts and definitions that can serve as solid starting points from which you can build more persuasive arguments for your preferred policies, whatever they may be.
What Everyone Should Know about the Constitution and American Legal System:
1) What is Government?
This may seem like a silly question, but in an age of outsourcing and privatization, it’s often harder to identify government than you might think. (For example, tax dollars pay the salaries of more than 18 million people employed by private companies or nonprofit organizations under contracts with government agencies. Are they part of government? It depends.)
Governments were originally defined as entities having the exclusive right to exercise legitimate coercive power. They were established to keep the peace and control the kinds of behaviors that a given society believes to be inconsistent with public order. It is a truism that a government strong enough to protect us is a government strong enough to oppress us, and some of our most acrimonious debates arise from concerns that by giving the government enough authority to do particular jobs, we may be giving it the power to unduly limit our liberties.
Government—sometimes referred to as “the state” (not to be confused with states, like Indiana or California) or the “public sector” (not to be confused with “the public square,” a very different concept) is also a mechanism through which we citizens collectively do things that would be difficult or impossible to do individually—issue currency, defend the nation’s borders, clean up waterways or pave roads. There are two non-governmental sectors: nonprofit and voluntary organizations or associations (sometimes called civil society or the nonprofit sector), and private persons, families and businesses—the private sector.
The role of government has grown significantly over the years, and thanks to new agencies performing new tasks and the growth of public-private partnerships of various kinds, its presence isn’t always obvious. But here’s a good rule of thumb: If an agency is managed by someone we’ve elected—or by someone appointed by someone we’ve elected—and if it is financed with our tax dollars, it’s probably government.
Why It Matters
In the United States, it is particularly important that we know government when we see it, because our constitutional system is largely based on a concept of “negative liberty.” The Founders believed that individual rights do not come from government; rather, they are “natural.” We are entitled to certain rights simply by virtue of being human (thus the term “human rights”), and government must respect and protect those rights. The U.S. Bill of Rights is essentially a list of things that government—“the state”—is forbidden to do. For example, the state cannot prescribe our religious or political beliefs, search us without probable cause, or censor our expression—and it is forbidden from doing these things even when popular majorities favor such actions.
Those limitations don’t apply to private, non-governmental actors. The government can’t control what you read, for example, but your mother can. The government can’t tell you what to say but (at least at work) your boss can. Your public (government) school can’t make you say a prayer, but a private or parochial school can. The doctrine known as “state action” is shorthand for these limits on government intrusions. If government hasn’t acted, or isn’t involved, neither is the Constitution. Private actors can break other laws, like civil rights laws, but only government can violate the Bill of Rights. That makes it pretty important to be able to recognize when government has acted.
2) What is a Constitution?
Constitutions are different in kind from the statutes and ordinances passed by legislative bodies. They are statements of broad principles that govern and limit what kind of laws legislatures may properly enact and what sort of actions government officials can properly take. While parts of the U.S. Constitution deal with specific, practical matters—how old must someone be to run for President? What is the function of the courts?—they also are statements of important principles meant to guide and constrain lawmakers and government authorities in the future. (There is a very big difference between “there shall be a traffic signal at First and Main Streets” or “there will be no smoking in public places” and “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”) A government is said to be legitimate when its laws and the actions of its public officials are consistent with the principles of its constitution.
Two hundred plus years after the American Constitution was drafted, lawmakers and judges must consult the text and context of our Constitution, in order to decide what the drafters’ original intentions were and the nature of the values they were trying to protect. Since there were many participants in the Constitutional Congress, and they did not speak with one voice, there were often differences of opinion about the meaning of the various provisions of the Constitution and Bill of Rights even then.
Why It Matters.
Understanding the difference between a constitution and an ordinary law is important for a number of reasons, not the least of which is that constitutions are statements of national aspirations and beliefs about the proper way for citizens to live together. Understanding what values the Founders were trying to protect helps us apply those values to situations they could never have envisioned. It’s a safe bet that James Madison did not have an opinion about government regulation of porn on the Internet, for example. But he most certainly had strong opinions about the value of protecting free expression. The Founders who drafted the Fourth Amendment’s Search and Seizure provisions could hardly have foreseen technology that allows police officers to “see” marijuana growing inside a house from across the street. Our Courts must decide how the Founders would have applied the principles that were so important to them to such new “facts on the ground.” (This process is what legal scholars mean when they talk about the “living Constitution.”) If we don’t know the history and philosophy that motivated the Founders’ choices, we can’t form educated opinions about the application of their principles to modern situations.
3) What Was the Enlightenment?
The Enlightenment is the name given to the 18th Century cultural, intellectual and philosophical movement that produced science, empirical inquiry, and the “natural rights” and “social contract” theories of government legitimacy on which our system is based. Enlightenment thinkers included Isaac Newton, Voltaire, Montesquieu, Hobbes, John Stuart Mill, John Locke and many, many others. The Enlightenment ushered in profound changes in the way people thought about science, education, liberty and the role of government.
Why It Matters
The Enlightenment changed the definition of liberty. The Puritans and Pilgrims who came to America defined religious liberty as “freedom to do the right thing”—freedom to worship and obey the right God in the true church, and to use the power of government to ensure that their neighbors did too. The Founders who crafted our constitution some 150 years later were products of the Enlightenment and its dramatically different concept of liberty. Enlightenment philosophers defined liberty as personal autonomy—an individual’s freedom to make his own moral and political decisions, free of government coercion. In the Enlightenment’s libertarian construction, liberty meant freedom to “do your own thing,” so long as you did not thereby harm the person or property of someone else, and so long as you recognized the equal right of others to do their “own thing.” The U.S. Constitution is based upon the Enlightenment understanding of liberty.
The Enlightenment also gave us John Locke’s “social contract” theory of government. Locke believed that government legitimacy rested on a theorized agreement—a ”social contract” –between citizens and their governments. Citizens gave the state a monopoly on the use of coercive power in return for the state’s protection of their property, and its maintenance of public order and safety. (This was a dramatic change from belief in the divine right of Kings, a belief that had long justified monarchy.) In Locke’s view—adopted by the Founders—power came from the people, who authorized government to exercise that power for specific purposes, and who could revoke that authority if the government failed to keep its part of the bargain.
4) What is the Bill of Rights?
When the Constitutional Convention drafted a document to replace the unworkable Articles of Confederation, that document did not include a Bill of Rights. The omission was not because there was a disagreement over the importance of those rights; it was because the new government was seen as one of delegated powers, and those powers did not include censoring speech, dictating religious beliefs and otherwise infringing fundamental liberties. Those who opposed adding written guarantees to the constitution also worried that any effort to enumerate, or list, basic liberties would inevitably omit some. Nevertheless, it quickly became clear that the new constitution would not be ratified unless proponents promised to enact a Bill of Rights spelling out specific liberties that government could not infringe.
As passed, the first eight Amendments listed rights that the government was specifically forbidden to infringe; the Ninth and Tenth Amendments were added to address the concerns of Founders like Alexander Hamilton, who worried that any list of protected rights would inevitably leave some out. The Ninth and Tenth Amendments—sometimes called the “Rights and Powers” Amendments—were intended to make it clear that just because a right wasn’t “enumerated” didn’t mean people didn’t still have that right, and to affirm that powers not specifically given to the federal government were retained by the states and/or the people.
The Bill of Rights initially limited only federal government action. It wasn’t until the Fourteenth Amendment was ratified, in the wake of the Civil War, that the Bill of Rights’ limits on government power were applied to state and local government actors as well. The 14th Amendment prohibited states from denying their own citizens the “privileges and immunities” of American citizenship; as a result, in a series of cases interpreting the Amendment, the Supreme Court ruled that Americans are entitled to the same fundamental rights no matter which state they live in. You don’t lose your right to vote, for example, or your right to choose your own religion or reading material, when you move from one state to another. Today, when we refer to the Bill of Rights, we typically mean the first ten Amendments plus the Equal Protection and Due Process Clauses of the 14th Amendment.
Because the Bill of Rights incorporates the Enlightenment understanding of liberty as a negative, that is, as our right to be free of government interference with our fundamental rights, only government can violate the Constitution. If there has been no state action—the legal term meaning action taken by a unit of government—the constitution isn’t involved.
Why it Matters
The Bill of Rights raises and answers an important procedural question: who decides? Who decides what prayer you say, what book you read, how many children you have? In our system, government doesn’t get to decide these and other very personal matters—we individuals decide these things for ourselves. The Bill of Rights doesn’t tell us what we should value or how we should live our lives; it protects our right to make those decisions for ourselves, free of the interference of government.
The Bill of Rights not only limits what government can do, it limits what popular majorities can vote to have government do. In fact, the Bill of Rights is sometimes called a “libertarian brake” on the power of the majority. The Bill of Rights ensures that a majority of your neighbors cannot vote to make you a Baptist or an Episcopalian; they also don’t get to vote on your reading materials or your political opinions. When people don’t understand that the Bill of Rights limits what majorities can vote to have government do, they often misunderstand court decisions that uphold the right of individuals to hold unpopular positions or unconventional beliefs. The courts are not endorsing the choices made by those individuals; rather, they are protecting the right of individuals to make their own choices. When legislators fail to appreciate the limits imposed by the Bill of Rights, they often enact unconstitutional laws that deprive citizens of their liberties. When people don’t understand the operation of the 14th Amendment, they don’t understand that the Bill of Rights applies to all levels of government, including state and local authorities.
5) What are Checks and Balances?
The U.S. Government is divided into three branches: Executive (sometimes called Administrative), legislative, and judicial. We refer to this Constitutional structure, or architecture, as Separation of Powers, and it is fundamental to the American form of government.
The purpose of dividing government powers and responsibilities in this way was twofold. Enlightenment thinkers believed such a system would be more efficient, a division of labor that would make the best use of specialized skill and expertise. Judges would be better at judging if that was the bulk of their responsibilities; legislators would be more adept at passing laws, and so forth. They were also convinced that a division of power would keep any one branch from becoming too powerful and thus threatening the liberties of citizens. Each branch would check the powers of the other branches.
The legislative branch passes the laws. The executive branch administers those laws. And the judiciary—ultimately, the Supreme Court—determines whether the laws passed by legislators and the actions of the administration are consistent with the Constitution and Bill of Rights.
Checks and balances don’t stop with the division of the federal government into three separate branches. The system devised by the Founders also gave significant authority to state and local units of government, further dividing power. We call that structure federalism. If you have a zoning issue, for example, you take your case to your local, municipal government; if you want to lobby for changes to family or marriage laws, you approach state legislators. Local, state and federal authorities have different, although sometimes overlapping, jurisdictions. Federalism obviously raises the possibility of conflicts between federal and state laws; when that happens, the Constitution’s Supremacy Clause provides that the federal law prevails.
Why it Matters.
Understanding the structure of our government is important for many reasons. If you want to effect a change, you need to know who has the authority to make that change. (Griping about a zoning ordinance to a member of Congress may make you feel better, but it’s not likely to do much good.) Understanding how the branches interact is also necessary in order to cast informed votes; at election time, the airwaves are filled with political advertisements blaming officeholders for doing or failing to do something. Often, the effectiveness of that charge depends upon voters not understanding where the actual responsibility for action or inaction lies. This is particularly true of political campaigns for chief executives—Governors or the President. People unfamiliar with checks and balances tend to believe that the President or Governor can simply decide to make some change, and it will happen. That is very rarely the case; even appointments to policymaking positions or the courts often require ratification by the legislative branch. We need to understand the operation of checks and balances and the way they limit the exercise of power in order to arrive at informed opinions about elected officials’ performance.
6) What is Judicial Independence?
In the federal courts, judges are appointed for life, and can be removed only for improper behavior. This is an important part of our system of checks and balances. We elect a President, who appoints members of the executive branch; we elect the men and women who represent us in Congress. Those two branches are thus “answerable” to voters. We can dismiss them—vote them out—if we don’t like the way they discharge their duties. The courts, on the other hand, are not supposed to do voters’ bidding; they are responsible to the Constitution and the rule of law, not to popular passions or the electorate.
Why It Matters.
Removing judges from electoral politics was intended to insulate the courts from political pressure. When judges must decide high-profile or highly charged cases, we want them to make those decisions on the basis of their reading of the law, the facts and the Constitution—not out of fear of being voted out of office by a public that may favor a different result. When judges are elected, as they are in some states, and must raise campaign money in order to mount a campaign, there is also a concern that they will weigh the positions of campaign contributors more heavily than the demands of justice or the requirements of the rule of law. When judges make poor decisions—and some will—we nevertheless want those decisions to be based upon their considered judgments, not on political expediency.
7) What is Freedom of Speech?
Most of the people who want to ban a book or a painting, who want to protect the flag or the Virgin Mary from desecration, are acting on their belief in the nature of the public good. They see unrestrained freedom as a threat to the social fabric. The Founders did not minimize the danger of bad ideas; they believed, however, that empowering government to suppress “dangerous” or “offensive” ideas would be far more dangerous than the expression of those ideas—that once we hand over to the state the authority to decide which ideas have value, no ideas are safe. (Where fundamental liberties are concerned, majority rule is a lot like poison gas—it’s a great weapon until the wind shifts!)
Like our legal and economic systems, the Free Speech clause of the First Amendment is based upon a belief in the marketplace–if you make a better widget, it will beat out the competition; if you have a better idea, it will eventually emerge victorious. Accordingly, in our system, the antidote to bad speech is not suppression; it is more and better speech. Every so often, we must remind ourselves that the First Amendment was intended to protect all ideas, not just good ideas, or those with which a majority or substantial minority may agree. As Justice Oliver Wendell Holmes memorably put it, the Free Speech Clause of the First Amendment was meant to protect “the idea we hate.”
While government must respect our right to express our own opinions—while it cannot control the content of our message—it can constitutionally regulate the time, place and manner of that expression. Such restrictions, however—no sound trucks in residential neighborhoods after 10:00 pm, for example—must be reasonable, must be content neutral (that is, not based upon the idea being expressed), and must apply to everyone equally.
Why It Matters.
John Stuart Mill made perhaps the most enduring moral argument for free speech, writing “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” This argument rests on respect for the integrity of the individual conscience—respect for the “inalienable” right of each individual to form and exchange opinions voluntarily, and to attempt to persuade others of the validity of those opinions. In addition to this argument for the importance of protecting free speech as an individual right, however, Mill and other Enlightenment philosophers believed that a robust “marketplace of ideas” was the mechanism most likely to guarantee that truth would emerge from public debate.
8) What is Separation of Church and State?
The phrase “separation of church and state” refers to the operation of the First Amendment’s religion clauses. The phrase itself does not appear in the Constitution. (Its first documented use was by Roger Williams, founder of Rhode Island, well before the Revolutionary War.) The most famous use of the phrase came from Thomas Jefferson; when Jefferson was President, a group of Danbury Baptists wrote to him asking for an official interpretation of the First Amendment’s religion clauses. Jefferson’s response was that the Establishment Clause and Free Exercise Clause were intended to “erect a wall of separation” between government and religion.
Historians tell us that the Establishment Clause went through more than 20 drafts, with the Founders rejecting formulations like “there shall be no National Church.” The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The courts have uniformly held that this language not only forbids the government from establishing an official religion or state Church, but also prohibits government actions that endorse or sponsor religion, favor one religion over another, or that prefer religion to non-religion, or non-religion over religion.
The Free Exercise Clause prohibits government interference with the “free exercise” of religion. Americans have the right to choose their own beliefs, and to express those beliefs without fear of state disapproval. Together, the Free Exercise Clause and the Establishment Clause require government neutrality in matters of religion. Government can neither benefit nor burden religious belief. One way to think about the operation of the religion clauses is that the Establishment Clause forbids the public sector (i.e., government) from favoring or disfavoring religion, and the Free Exercise Clause forbids government from interfering with the expression of religious beliefs in the public square (i.e., the myriad non-governmental venues where citizens exchange ideas and opinions.)
It’s important to note that the courts have endorsed some restrictions on religious observance (as opposed to belief)—for example, your religion may call for sacrificing your first-born, or smoking dope, but your rights under the Free Exercise Clause don’t extend that far!
Why It Matters.
Some of Americans’ most heated arguments are rooted in religion. This has always been the case, even in colonial times, when “religious diversity” mostly meant “different kinds of Protestant.” As we become more religiously diverse as a nation, it becomes even more important to understand the constitutional limits on the rules that government can impose.
When states misuse their authority to play favorites, to privilege some religious beliefs over others, people who do not share those privileged beliefs are relegated to the status of second-class citizens. Separation of church and state prevents adherents of majority religions from using government to force their beliefs on others, and it keeps agencies of government from interfering with the internal operations of churches, synagogues and mosques. As government becomes more pervasive, knowing where to draw the line between what is permissible and what is not becomes more difficult, making it even more important to understand the original purpose of the religion clauses.
As to that original purpose, there are few explanations better than the one offered by John Leland (1754-1851), an evangelical Baptist preacher with strong views on the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”
9) What is Freedom of the Press?
It is interesting to consider why freedom of the press was singled out for specific protection in the First Amendment. After all, the Free Speech clause obviously protected journalists as well as other citizens. Why include a specific provision about freedom of the press?
The answer is that the architects of our constitution believed that self-government requires the free and uninhibited flow of information. They wanted to be extra-certain the government kept its hands off that information. So while the First Amendment protects all expression, the free press provision emphasizes the importance of protecting the specific kind of expression we call “journalism.” Note that the constitution doesn’t protect persons called “journalists.” It protects the act of journalism. The activity of “journalism” ensures the availability of information that is in the public interest.
The Founders were anything but naïve. They recognized that what they called the press and we call the media got it wrong a lot of the time. The newspapers of their own time were partisan rags that make our own politicized outlets look positively statesmanlike by comparison. But the Founders also believed that only the freest, most robust exchange of argument, information and gossip would safeguard liberty. Neither Freedom of Speech nor Freedom of the Press rested on the notion that ideas are unimportant, that “sticks and stones can break my bones, but words won’t hurt me.” The Founders knew that ideas are often both powerful and dangerous. But they believed that giving the government power to determine which ideas and information can be transmitted or expressed was infinitely more dangerous.
Why It Matters.
An informed citizenry is ultimately the only guarantor of liberty and sound public policy, and in our complex modern society, citizens depend upon the media for that information. This role of mass media is sometimes called “the watchdog function,” and it is critically important to reasoned political decision-making. One of the challenges facing American citizens in the age of the Internet is the fragmenting of the traditional media, and the loss of the fact-checking function it used to provide. When citizens do not have reliable and credible sources of information, ideology and partisanship drive the national conversation. Whatever their faults and shortcomings, media providing what has been called “the journalism of verification” are critically important to democratic deliberation.
10) What is the Right to Assemble?
In addition to Freedom of Speech, Religion and the Press, the First Amendment provides for “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Supreme Court held in 1937 that the right to peaceably assemble “for lawful discussion, however unpopular the sponsorship, cannot be made a crime.”
Why It Matters.
When we think about assembling today, images of the Tea Party or Occupy Wall Street may come to mind, but this right to demonstrate, to engage in public protest, has been an important part of the American story for a long time. It protected union organizers, facilitated the civil rights movement of the late 1950s and early 1960s, and the gay rights movement of our own times. It has also protected those trying to derail those movements. Demonstrations—sometimes called “symbolic speech”—are part of the broad umbrella of expressive freedom that the Founders believed to be essential to ordered liberty. Protecting the right of citizens to come together to protest perceived injustices or highlight social problems is yet another “check” on the power of government. It empowers citizens to demand that their concerns be heard, if not necessarily addressed.
11) What is Search and Seizure?
Before the American Revolution, British soldiers entered the homes of colonists at will, searching any person or place they wanted and often motivated by nothing more than political animosity. Resentment of this practice was a significant cause of the Revolution. (To be fair, many Englishmen also objected to the use of “General Warrants” authorizing searches at the discretion of the authorities. William Pitt, addressing Parliament in 1763, famously said, “The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter.”)
When America won independence, revulsion against such practices led to enactment of the Fourth Amendment, which provides that people have a right to be secure in their “persons, houses, papers and effects against unreasonable searches and seizures” and requires that police and other authorities have a warrant, issued upon “probable cause,” to conduct such searches. The Amendment effectively prohibited searches unless government had cause to believe that a crime had occurred and a good reason to believe that a specific person or place contained evidence of that crime. Furthermore, the reasonableness of the search was not to be left to the discretion of an individual policeman; a search warrant was to be issued by an impartial magistrate.
Why It Matters.
The Fourth Amendment protects citizens against abuses of authority by erecting procedural safeguards against over-reaching and intimidation. America, unlike totalitarian regimes, places the burden on government to show why it should be allowed to search, rather than on citizens to demonstrate why they should be left alone. The Fourth Amendment rests on the premise that individuals are entitled to be left alone unless there is good reason or “probable cause” to intrude upon their privacy. It would thus violate the Fourth Amendment if police stationed themselves on a public street and demanded that every third passer-by submit to a drug test, even if it could be demonstrated that a high percentage of those who lived in that neighborhood used drugs. The Fourth Amendment protects us against “fishing expeditions”—searches for something incriminating that are based solely on hunches, animosity or cultural stereotypes.
12) What is Due Process of Law?
The right of each citizen to “due process of law” is included in both the Fifth and Fourteenth Amendments. The Fifth Amendment provides that no person shall be “deprived of life, liberty or property without due process of law” and the Fourteenth Amendment reinforces that prohibition by declaring that “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law..”
The effect of this insistence on a fair process can be seen most clearly in the American criminal justice system. Unlike civil and canon law systems—sometimes referred to as inquisitorial systems—that were common in Europe at the time of the Revolutionary War, the American adversarial system requires that proceedings be public, rather than secretive, and gives the accused a presumption of innocence. (In other words, the “burden of proof” is on the prosecution, which must prove guilt “beyond a reasonable doubt.” The accused person need not prove his innocence.) People charged with crimes have a right to be tried by a jury of their peers, in a trial presided over by an impartial judge, and they have the right to refuse to testify—to “take the Fifth” as popular culture phrases it. If the prosecution loses, that’s it—the prohibition against double jeopardy means the state can’t try again.
These and other aspects of criminal law’s due process guarantees were efforts to address the imbalance between a powerful government and far less powerful individuals. The primary goal of our system is not to demonstrate the authority of an all-powerful state, it is to find the truth of a matter, and achieve justice.
Americans’ right to due process is not limited to the criminal justice system. Whenever government acts in a way that threatens a citizen’s liberty or property, the government must provide fair notice and an opportunity for that citizen to be heard. Due process in civil matters is based upon the individual’s right to insist that government actions meet the test of fundamental fairness. So when government proposes to take action that would violate what the courts have called “the liberty interest” (the right to enter into contracts, the right to engage in common occupations, the right to marry and bring up children, to worship freely, to acquire useful knowledge—in short, the right to enjoy the qualities of life recognized as essential to the pursuit of happiness), or when the government proposes to infringe a “property right” (licenses to practice a profession, social security entitlements, civil service employment) we have a right to be notified of the impending action and the reasons for it, and the right to argue about it—to confront witnesses against us, and to have our arguments heard by an impartial decision-maker.
There is one other type of due process, and it is widely misunderstood. This is substantive due process, sometimes called “the right to privacy.” Substantive due process shields private rights from the exercise of arbitrary power; it distinguishes between matters that are properly a concern of government, and thus subject to regulation, and those that are not. (The Supreme Court has ruled, for example, that the question whether married couples use birth control is a personal decision, not a decision that can constitutionally be made by government.)
Why It Matters
Due process is an essential element of the rule of law; the existence of a fair and open process that applies equally to everyone prevents the exercise of raw power, and arbitrary or capricious enforcement of the rules. In addition to being seen as “fair play,” due process is essential to social stability. When people feel that they have been treated unjustly, when they have been prevented from “having their say, or making their case, they are far less likely to abide by the law or official rulings.
Due process is also a tangible outgrowth of the Founders’ insistence on limiting state power. The U.S. Constitution draws a distinction between public and private, and substantive due process guarantees are one way we ensure that government does not overreach, does not intrude into decisions that are properly left to individuals. Both procedural due process and substantive due process are meant to limit the authority of government and prevent abuses of state power.
12) What Do We Mean by “Equal Protection of the Laws?”
Governments have to classify citizens for all kinds of perfectly acceptable reasons. We draw a distinction between children and adults, between motorists and pedestrians, between smokers and non-smokers. The Equal Protection doctrine prevents government from imposing inappropriate classifications; those based upon criteria that are irrelevant to the issue, or that unfairly burden a particular group. The general rule is that a governmentally imposed classification must be rationally related to a legitimate government interest. A requirement that motorists observe a speed limit is clearly a classification related to government’s entirely proper interest in public safety. A law that imposed different speed limits on African-American and Caucasian drivers just as clearly would be improper.
Laws can be discriminatory on their face (i.e., only white males can vote); however, these days, laws meant to be discriminatory are usually crafted to achieve that result by design. That is, they are drawn to look impartial on their face, but to have a discriminatory effect. A rule that all firefighters weigh 180 or more pounds would prevent many more women from being employed than men, despite the fact that one’s weight is not a indicator of strength or the ability to climb a ladder, etc. There are also situations in which genuinely neutral laws are applied in a discriminatory fashion. (The phrase “Driving While Black” grew out of statistics suggesting that some police officers were disproportionately stopping black motorists for speeding.)
The courts will look more closely at classifications that burden constitutional rights, or disadvantage members of groups that have historically been subject to discrimination. Racial minorities and women fall into those categories. We call that process of taking a closer look “heightened” or “strict” scrutiny.
Why It Matters.
The constitutional requirement of equal protection is intended to prevent majorities from using government to disadvantage individuals and minorities of whom the majority may disapprove. Equal Protection guarantees—like all the other provisions in the Bill of Rights—restrain only government. Statutes may or may not address private-sector discrimination.
Essentially, the Equal Protection Clause requires government to treat citizens as individuals, not as members of a group. Laws are supposed to be based upon a person’s civic behavior, not her gender, race or other identity. So long as we citizens obey the laws, pay our taxes, and generally conduct ourselves in a way that does not endanger or disadvantage others, we are entitled to full equality with other citizens. That guarantee of equal civic rights is one of the aspects of American life that has been most admired around the globe; it has unleashed the productivity of previously marginalized groups and contributed significantly to American prosperity.
13) What is the Difference between Civil Liberties and Civil Rights?
If you aren’t quite certain, you have a lot of company. The distinction is lost on many, if not most, citizens and on a good number of legislators. Civil liberties are the individual freedoms protected by the Bill of Rights. They are rights that agencies of government must respect. Citizens of the new United States refused to ratify the Constitution unless a Bill of Rights was added, specifically protecting them against official infringements of their rights. Among our civil liberties are the right to free expression, the right to worship (or not) as we choose, and the right to be free from unreasonable searches and seizures. After the civil war, the Fourteenth Amendment added the Equal Protection Clause, prohibiting government from treating equally situated citizens unequally. Only the government can violate your civil liberties.
Civil rights took a lot longer to achieve, and were—and still are—a lot more controversial. Congress passed the Civil Rights Act in 1964. Civil rights laws protect people against private acts of discrimination in employment, housing or education. The original Civil Rights Act applied to businesses engaged in interstate commerce—businesses that held themselves out to be “public accommodations” but were, shall we say, “selective” about which segments of the public they were willing to accommodate. State and local civil rights acts followed passage of the federal law. Civil rights laws generally include a list of characteristics that cannot be used to disfavor or discriminate against people: race, religion, gender, and so forth.
Why It Matters.
Knowing the difference between rights that are rooted in the constitution and those that are creations of statute helps Americans better understand our national history, and the arguments being made by groups that remain unprotected by civil rights laws. For example, GLBT people in states with civil rights laws that do not prohibit discrimination on the basis of sexual orientation can legally be fired just for being gay. Landlords can refuse to rent apartments to them. (The Fourteenth Amendment’s Equal Protection Clause prohibits government employers from treating gays and lesbians differently, but it has nothing to say about private employers.)
Similarly, knowing which rights are constitutionally protected should allay concerns expressed by some religious groups that passage of a civil rights law will force them to change their religious beliefs. Since the Free Exercise Clause is a constitutional guarantee, the amendment of a civil rights measure to include protection for gays and lesbians would have no effect on the practices or preaching of churches that consider homosexuality sinful—just as civil recognition of divorce did not mean that the Catholic Church had to change its theological opposition to that practice.
What Everyone Should Know About the American Economic System
14) What is Capitalism?
Capitalism is defined as an economic and political system in which a country’s trade and industry are controlled by private owners for profit. It is characterized by free markets, where the prices of goods and services are determined by supply and demand, rather than set by government. Economists often define the ideal of free trade as a transaction between a willing buyer and a willing seller, both of whom are in possession of all information relevant to that transaction.
Why It Matters.
Understanding the importance of free trade to capitalism is important, because it defines the proper role of government in a capitalist system—as an “umpire” or referee, ensuring that everyone plays by the rules. For example, Teddy Roosevelt reminded us that monopolies distort markets; if one company can dominate a market, that company can dictate prices and other terms with the result that those transactions will no longer be truly voluntary. If Manufacturer A can avoid the cost of disposing of the waste produced by his factory, by dumping it into the nearest river, he will be able to compete unfairly with Manufacturer B, who is following the rules governing proper waste disposal. If Chicken Farmer A is able to control his costs and gain market share by failing to keep his coops clean and his chickens free of disease, unwary consumers will become ill. Most economists agree that in order for markets to operate properly, government must act as an “umpire,” assuring a level playing field.
This need for government is a response to what economists call “market failure.” There are three situations in which Adam Smith’s “invisible hand” doesn’t work: when monopolies or corrupt practices replace competition; when so-called “externalities” like pollution harm people who aren’t party to the transaction (who are neither buyer nor seller); and when there are “information asymmetries,” that is, when buyers don’t have access to information they need to bargain in their own interest. Since markets don’t have built-in mechanisms for dealing with these situations, most economists argue that regulation is needed.
Economists and others often disagree about the need for particular regulations, but most do agree that an absence of all regulatory activity undermines capitalism. Unregulated markets can lead to a different system, sometimes called corporatism. In corporatist systems, government regulations favoring powerful corporate interests are the result of lobbying by corporate and monied special interests that stand to benefit from them. You might think of it as a football game where one side has paid the umpire to make calls favorable to that team.
15) What is Socialism?
Socialism is the collective provision of goods and services. The decision whether to pay for certain services collectively rather than leaving their production and consumption to the free market can be based upon a number of factors. First, there are some goods that free markets cannot or will not produce. Economists call them public goods, and define them as both “non-excludable” –meaning that individuals who haven’t paid for them cannot be effectively kept from using them—and “non-rivalrous,” meaning that use by one person does not reduce the availability of that good to others. Examples of public goods include fresh air, knowledge, lighthouses, national defense, flood control systems and street lighting. If we are to have these goods, they must be supplied by the whole society, usually through government, and paid for with tax dollars.
Not all goods and services that we provide collectively are public goods. Policymakers have often based decisions to socialize services on other considerations: we socialize police and fire protection because doing so is generally more efficient and cost-effective, and because most of us believe that limiting such services only to people who can afford to pay for them would be immoral. We socialize garbage collection in more densely populated urban areas in order to enhance the livability of our cities and to prevent disease transmission.
Why It Matters.
Getting the “mix” right between goods that we provide collectively and those we leave to the free market is important, because too much socialism hampers economic health. Just as unrestrained capitalism can become corporatism, socializing the provision of goods that the market can supply reduces innovation and incentives to produce. During the 20th Century, many countries experimented with efforts to socialize major areas of their economies, and even implement socialism’s extreme, communism, with uniformly poor results. Not only did economic productivity suffer, so did political freedom. (When governments have too much control over the means of production and distribution, they can easily become authoritarian.)
Virtually all countries today have mixed economies. The challenge is getting the right balance between socialized and free market provision of goods and services.
16) What are the Differences between Socialism, Fascism and Communism?
In our highly polarized politics today, words like Socialism, Fascism and Communism are used more as insults than descriptions. There are numerous disagreements about the essential characteristics of these systems, probably because the theories underlying them were so different from the actual experiences of those who tried them.
Socialism may be the least precise of these terms. It is generally applied to mixed economies where the social safety net is much broader and the tax burden is correspondingly higher than in the U.S.—Scandinavian countries are an example.
Communism begins with the belief that equality is defined by equal results; this is summed up in the well-known adage “From each according to his ability; to each according to his needs.” All property is owned communally, by everyone (hence the term “communism”). In practice, this meant that all property was owned by the government, ostensibly on behalf of the people. In theory, communism erases all class distinctions, and wealth is redistributed so that everyone gets the same share. In practice, the government controls the means of production and most individual decisions are made by the state. Since the quality and quantity of work is divorced from reward, there is less incentive to innovate or produce, and ultimately, countries that have tried to create a communist system have collapsed (the USSR) or moved toward a more mixed economy (China).
Fascism is sometimes called “national Socialism,” but it differs significantly from socialism. The most striking aspect of fascist systems is the elevation of the nation—a fervent nationalism is central to fascist philosophy. There is a union between business and the state; although there is nominally private property, government controls business decisions. Fascist regimes tend to be focused upon a (glorious) past, and to uphold traditional class structures and gender roles as necessary to maintain the social order.
Three elements commonly identified with Fascism are 1) a national identity fused with racial/ethnic identity and concepts of racial superiority; 2) rejection of civil liberties and democracy in favor of authoritarian government; and 3) aggressive militarism. Fascism has been defined by this radical authoritarian nationalism, with fascists seeking to unify the nation through the elevation of the state over the individual, and the mass mobilization of the national community through discipline, indoctrination, and physical training. Nazi Germany and Mussolini’s Italy are the most notable examples of Fascist regimes.
Why It Matters.
Understanding the differences among these different political philosophies is important for two reasons: first, we cannot have productive discussions or draw appropriate historical analogies if we don’t have common understandings of the words we are using. Second, we cannot learn from history and the mistakes of the past if the terms we are using are unconnected to any substantive content. When activists accuse an American President of being a Fascist or a Communist, labels that have been thrown at both President George W. Bush and President Obama, it trivializes the crimes committed by the Nazis and the Soviets and it makes it difficult, if not impossible, to engage in reasoned discussion about—or persuasive criticism of—whatever the President is doing that led to the charge.
17) What are the Differences between the Private, Nonprofit and Public Sectors?
Again, this may seem like a silly question, much like “what is government?” but in an era of blurring boundaries, it is important to recognize the distinctions between the sectors. The public sector is composed of government at all levels, local, state and federal. If it is government, it is part of the public sector. (Not to be confused with the public square, which is not a sector at all, but a shorthand phrase meaning the arenas where public debates occur.) Both the nonprofit and private sectors are private, in the sense that they are not government, but the nonprofit sector—sometimes referred to as “civil society”—is composed of voluntary associations dedicated to providing a public good rather than generating a profit. Nonprofit organizations are sometimes said to provide a buffer between impersonal government agencies on the one hand, and individuals and their families on the other. They range from professional associations to charitable organizations to religious communities and volunteer groups. Technically, the private sector is everything other than government and nonprofit and voluntary associations, but usually the term is employed to mean for-profit business enterprises.
Why It Matters.
Knowing whether a particular enterprise is part of government, a nonprofit organization, or a private, for-profit entity tells us a great deal about its mission and purpose, because the sectors have very different reasons for operating. Government, as we have seen, is the collective mechanism through which communities and nations provide services that either cannot be provided privately, or that policymakers have determined should be provided by the state. Nonprofit organizations also have a social mission, either providing something that government is not or cannot provide, or supplementing government services deemed to be inadequate. Private sector enterprises exist to earn a profit. While we want government and charitable organizations to operate in a businesslike manner, those sectors are fundamentally different from business and pose very different management challenges.
One of the major debates among policymakers involves the effect of outsourcing (sometimes called privatization) on sector identity. Some scholars worry that too much government outsourcing—especially to nonprofit organizations—is both “hollowing out” government’s capacity to manage core government responsibilities, and turning nonprofits into less visible arms of the state. Knowing the differences between sectors and their missions allows citizens to monitor such practices.
18) What are Taxes and How are They Assessed?
Taxes have been called the price we pay for membership in society. How we tax, who we tax and how much, are probably the most hotly-debated political issues we confront, because what seems fair to one person seems unfair to another. Most people agree that governments need revenue in order to provide services, but they don’t necessarily agree on the services government should provide, the amount of revenue government really needs or the way government should raise that money.
Federal, state and local governments all have the power to tax, and policymakers must decide what to tax (earned income, dividends and interest, property, sales, inheritances?), who is taxed (nonprofits, for-profits, individuals, corporations?) and how it is taxed (progressively, regressively, proportionately?). Governments also must decide how much will be spent and for what, in order to determine how much money must be raised through the tax system. All of these decisions, and their economic consequences, are the subject of heated and legitimate debate.
Why it matters.
Americans believe passionately in fairness and equality. The tax system may be complicated, and taxing and spending decisions may be difficult to understand, but a basic knowledge of what the money goes for, how much goes where, and where it comes from is essential if we are to have productive discussions about tax fairness. (For example, surveys routinely show that large percentages of Americans believe we spend 25% of the federal budget on foreign aid, and that a ‘more appropriate’ amount would be 10%. We actually spend less than 1% on foreign aid.)
The American tax system depends upon the voluntary compliance of taxpayers. No constable comes to your door to check your books and calculate what you owe, although you may be audited if your tax return raises red flags. If the system is to work, if we expect people to report their incomes accurately and pay what they owe without coercion, the system must be viewed as fundamentally fair. Widespread misconceptions erode the public’s belief in the system’s legitimacy.
One of the most important misunderstandings of our tax system concerns the difference between the marginal tax rate and the effective tax rate. In a progressive tax system, reported income is divided into brackets. The marginal rate is the rate applied to dollars earned that fall in successively higher brackets. For example, let’s assume you earn $60,000, and there are no exemptions or other adjustments—that the whole 60,000 is being taxed. If the first 20,000 of income you earn falls in a 10% bracket, that first 20,000 will always be taxed at 10% or $2000 no matter how much more you earn. If the next 20,000 is taxed at the next highest rate—say 15%–you will pay $3000 on that 10,000, and if the next 20,000 is taxed at 20%, that amount will be taxed $4000. Using this (grossly oversimplified) example, your marginal rate is 20%, but your effective rate—the actual percentage of your total earnings that you pay in taxes—is 15%. Your total tax, using this example, would be 9,000; if you were paying 20% on the entire 60,000, your tax bill would be 12,000. In real life, thanks to multiple exemptions, deductions and tax incentives, people making income subject to the highest current marginal tax bracket—36%–can bring their effective rates down dramatically. Millionaires often have an effective tax rate below 15%.
Many people understand this, but many others do not. When they read about the marginal rates of 50% or even 90% that used to be in effect, they think those rates were applied to the taxpayer’s entire earnings.
Another widespread misconception concerns the identification of federal taxes with the income taxes. Personal income taxes are federal taxes, but there are many other kinds of federal tax: the payroll tax, the federal excise tax, and various specialized taxes. While the income tax is mildly progressive—that is, as income rises into successive tax brackets, it is subject to higher rates—taxes like the payroll tax and federal excise tax on gasoline are considered regressive, because they take a larger percentage of the income of those who earn less. Furthermore, people who earn very little money or people with lots of deductions may not pay income tax, but almost everyone pays payroll and excise taxes.
19) What is the Difference between the Deficit and the Debt?
The deficit is the difference between the revenues government takes in (receipts) and what it spends (outlays) on an annual basis. Receipts are all of the money the federal government takes in from income, excise and social insurance taxes, fees and other income. Outlays are all federal spending, from social security and Medicare benefits, defense spending, administering the federal government and all its programs, to interest payments on the debt. When annual outlays exceed revenues, there is a deficit, and the Treasury must borrow the money needed for the government to pay its bills. It does so by selling securities and savings bonds to the general public and other willing buyers both in the U.S. and abroad. (Additionally, the Government Trust Funds are required by law to invest accumulated surpluses in Treasury securities. Securities issued to the public and to the Government Trust Funds then become part of the total debt. The national debt is composed of accumulated deficits.
Why It Matters.
Although pundits like to compare federal spending to the way individuals manage our households, the comparison is not really very apt, or helpful, because money that government spends has a large effect on the economy and job creation. Most economists—conservative or liberal—advise government to spend more or tax less during economic downturns, in order to lift economic performance. (Both government spending and tax cuts will stimulate the economy, although economists debate which approach is more likely to stimulate demand.) On the other hand, too much debt accumulated over too long a period can depress economic productivity by driving up the cost of business and personal borrowing, among other things. When government programs are cut too deeply in order to save money, jobs in the private and nonprofit sectors are lost, with a corresponding loss of tax revenues. (This is one concern with our defense budget, for example. Even though the Pentagon has determined we don’t need to spend so much, large-scale contractors with thousands of employees depend upon defense contracts for their existence.) In order to accurately assess proposals being made by our elected officials, it is important to understand whether we are talking about long-term or short-term spending, and what the effects of suggested reductions or increases in spending are likely to be.
20) What is the Debt Ceiling?
The Constitution requires that Congress make all spending decisions—the President proposes, but Congress disposes. Sometimes, as we’ve seen, Congress authorizes more spending than the government collects in revenue. That requires government to borrow the difference, in order to cover the deficit that Congress has authorized. For reasons that are not entirely clear, Congress also votes to authorize borrowing that will exceed the previously-set debt limit, or ceiling. This may seem a bit silly, since that vote comes from the same Congress that has already voted for the spending that requires the borrowing, but this practice of raising the debt ceiling has generally been uncontroversial, and for years the ceiling has been raised by votes from large, bipartisan majorities. More recently, a significant minority of Representatives has refused to vote to raise the ceiling.
Why It Matters.
It is unclear why some Representatives are refusing to cast the previously “pro-forma” vote to raise the debt ceiling, since failing to raise the debt ceiling would not do anything to reduce the national debt. Instead, it would be a vote for the U.S. to default on what it owes. If Congress were actually to fail to raise the ceiling, the results would be catastrophic; such an act would require the United States to stop paying many of its bills—including amounts owed to senior citizens for social security, defense contractors and members of the military who defend the country, and many others. Economists warn that such a failure to pay our bills could precipitate a worldwide economic collapse.
What Everyone Should Know About Science
21) What is science?
Science has been defined as the pursuit of knowledge and understanding of the natural and social world following a systematic methodology based on evidence. It requires the observation, identification, description, experimental investigation, and theoretical explanation of natural phenomena. Science is generally characterized by empirical inquiry; understood in this way, modern science dates back to the Enlightenment, when figures like Isaac Newton and Robert Boyle applied inductive reasoning to the methodological study of the physical world. The scientific method begins with the identification of a question or problem, after which relevant data are gathered, a hypothesis is formulated based upon that data, and the hypothesis is then subject to additional empirical testing.
Why does it matter?
Understanding what human activities can be classified as scientific, rather than philosophical, ideological or religious, is the only way we can determine the appropriate jurisdiction of governmental activities. If the House of Representatives’ Committee on Science and Technology is to properly evaluate matters that come before it, members of the Committee need to understand what counts as science and what does not. When public school boards are asked to include alternate theories of planetary and human creation in science curricula, they need to be able to distinguish between theories that are scientific—and thus appropriate for inclusion in a science classroom—and those that are based upon religious doctrine rather than empirical investigation.
22) What is a scientific theory?
Development of a scientific theory is a part of the scientific method. It involves summarizing a group of hypotheses that have been successfully and repeatedly tested. Once enough evidence accumulates to support a hypothesis, a theory is developed, and that theory becomes accepted as a valid explanation of a particular phenomenon. Scientific theories must be based on careful examination of the facts.
In the scientific method, a clear distinction is drawn between facts, which can be observed and/or measured, and theories, which are scientists’ explanations and interpretations of the facts. Scientists can draw various interpretations from their observations, or from the results of their experiments, but the facts, which have been called the cornerstone of the scientific method, do not change. A theory must include statements that have what scientists call “observational consequences.” A good theory, like Newton’s theory of gravity, will also have unity, which means it consists of a limited number of problem-solving strategies that can be applied to a wide range of scientific circumstances. A sound theory consists of a number of hypotheses that can be tested independently. A scientific theory is not the end result of the scientific method; theories are constantly supported or rejected, improved or modified as more information is gathered so that the accuracy of the prediction becomes greater over time. In order to be considered scientific, hypotheses and theories are always subject to falsification.
Why It Matters
In everyday conversation, the word “theory” means something very different from its scientific meaning. Nonscientists use the word theory to mean speculation, or guess—“I have a theory about that.” When we fail to distinguish between our casual use of the term and its very different scientific meaning, we confuse discussions of science policy and science education. This has been particularly true of arguments surrounding Darwin’s Theory of Evolution. Some religious people believe that the theory of evolution is inconsistent with a belief in God. Other religious authorities disagree. They challenge the teaching of evolution in biology classes because they believe that it is “just a theory.” Such debates are seldom enlightening, because participants are using the same term to mean very different things; they are talking past each other.
23) What is falsification?
Falsification is an essential characteristic of a scientific hypothesis or theory. Basically, a falsifiable assertion is one that can be empirically refuted or disproved. Falsifiability means that the hypothesis is testable by empirical experiment, and that it thus conforms to the standards of the scientific method. Merely because something is “falsifiable” does not mean it is false; rather it means that if it is false, then observation or experiment will at some point demonstrate its falsity. It is important to note that many things may be true, or generally accepted as true, without being falsifiable. Observing that a woman or a sunset is beautiful, asserting that you feel sad, declaring that you are in love and similar statements may be very true, but they aren’t science, because they can be neither empirically proved nor disproved. Similarly, God may exist, but that existence is not falsifiable—God cannot be dragged into a laboratory and tested. One either believes in His existence or not. (That’s why religious belief is called faith.)
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