American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
use of military tribunals to try terror suspects but rescinded that ban in 2011.
Civil libertarians also expressed concern about the use of “enhanced interrogation techniques” (such as waterboarding) used against terror suspects by the Bush administration. The Bush administration denied that such techniques constituted torture and pointed to the broad prerogative powers claimed by presidents during war and other emergencies as a justification for such action, but critics disagreed. President Obama eventually revoked the executive order issued by Bush that had authorized enhanced interrogation.138 Although Trump repeatedly endorsed such techniques during the 2016 presidential campaign (saying at one point that he would endorse the use of waterboarding “in a heartbeat” because “only a stupid person would say it doesn’t work”), his Central Intelligence Agency director, Gina Haspel, promised during confirmation hearings not to resume the use of enhanced interrogation techniques.139
Consequences for Democracy
Constitutional language is the basis for our civil liberties, but it is important to remember that constitutional language alone is not enough to preserve them. The constitutions of many other countries, including China, offer similar guarantees that ultimately prove to be hollow. What makes the U.S. system different is its long-standing commitment to the rule of law—its willingness to hold the government accountable to the Constitution. Any retreat from that commitment to the rule of law would have profound consequences for the liberties we cherish and take for granted.
Even with a strong commitment to the rule of law, holding government accountable to the Constitution requires interpretation of that document. And, as we have seen throughout this chapter, the ambiguity of constitutional language gives the Supreme Court great power to determine the actual scope of civil liberties. Quite simply, the way that civil liberties are interpreted and enforced matters to our democratic system and to you. Your ability to protest the government, worship as you please, use birth control, marry a same-sex partner, and decide whether to refuse medical treatment all depend not only on what the Constitution says but also on how the Supreme Court interprets it.
That is why so many Americans pay attention to who sits on the Court. The large number of 5–4 decisions discussed in this chapter is a vivid reminder of the power of individual justices. It is undeniable that President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh have shifted the balance of the Court and will influence policy for years to come (just as Hillary Clinton’s appointments would have done if she had won the 2016 election). That is why, as we will discuss in more detail in Chapter 14, judicial appointments are so important (and so highly contested).
Once they get on the Court, the tests justices choose to apply to individual cases have profound consequences. Being able to identify what kind of tests the justices use in particular cases may seem pedantic at first, but their choices affect everything from the regulation of your sexual behavior to whether an invocation is allowed at high school football games.
Incorporation has consequences, too. It has consequences for states, whose policy options are affected; for taxpayers, who may have to fund requirements such as jury trials in criminal cases; and for you, whose rights are extended.
Think about the consequences all of this has had for you and your friends. If you care about such things as prayer, guns, protest, sex, life, and death, civil liberties matter to you.
Critical Thinking Questions
1 How would our system of government be different if the Supreme Court had not embraced incorporation, and how would that difference affect you?
2 When, if ever, would you be willing to allow the government to curtail your civil liberties?
3 To what extent should the Supreme Court be able to recognize rights that have not been enumerated in the Constitution?
Key Terms
bad tendency test, 85
Bill of Rights, 76
civil liberties, 76
clear and present danger test, 85
due process clauses, 79
establishment clause, 91
exclusionary rule, 101
free exercise clause, 91
incorporation, 79
libel, 88
Miranda warnings, 101
natural rights, 94
prior restraint, 82
slander, 88
substantive due process, 80
symbolic speech, 86
time, place, and manner restrictions, 90
writ of habeas corpus, 99
Descriptions of Images and Figures
Back to Figure
The horizontal axis shows the responses and the vertical axis shows the percent from 0 to 100.
The details are as follows.
Guarantees rights of Americans: 73%
Only guarantees rights of state militia members: 20%
No opinion: 7%
Note: Survey respondents were asked in 2008 whether they believe the Second Amendment guarantees the rights of individual Americans to own guns, or whether they believe it only guarantees members of state militias such as National Guard units the rights to own guns. How did public opinion square with the Supreme Court’s interpretation of the Second Amendment prior to 2008? Did the Court do the right thing when it incorporated the Second Amendment?
Back to Figure
The horizontal axis shows the response choices and the vertical axis shows the percent from 0 to 60.
The details are as follows.
Strongly agree: 48%
Mildly agree: 18%
Mildly disagree: 13%
Strongly disagree: 15%
Don’t know: 7%
Note: How did those surveyed in this poll respond when asked whether they agreed that “The First Amendment requires a clear separation between church and state”? What do you think “a clear separation between church and state” means? Is the answer obvious?
Back to Figure
The details are as follows.
Abortion laws around the world, 2019.
To save the woman’s life or prohibited altogether: Mexico; Guatemala; El Salvador; Honduras; Costa Rica; Panama; Dominican Republic; Jamaica; Venezuela; Suriname; Brazil; Chile; Paraguay; Mauritania; Mali; Senegal; Cote d’Ivoire; Nigeria; Gabon; Congo; Angola; Madagascar; Malawi; Tanzania; Somalia; Uganda; South Sudan; Sudan; Libya; Egypt; Syria; Iraq; Yemen; Oman; United Arab Emirates; Iran; Afghanistan; Sri Lanka; Bangladesh; Bhutan; Myanmar; Vietnam; Philippines; Indonesia; Papua New Guinea
To preserve health: Colombia; Ecuador; Peru; Bolivia; Argentina; Morocco; Algeria Niger; Chad; countries around Cote d’Ivoire; Cameroon; Central African Republic; Democratic Republic of Congo; Kenya; Eritrea; Namibia; Botswana; Zimbabwe; Lesotho; Jordan; Saudi Arabia; Pakistan; Poland; Northern Ireland; Thailand Malaysia; New Zealand
Socioeconomic grounds: United Kingdom; Finland; Ethiopia; Zambia; India; Taiwan; Japan
Without restriction