HOL Final1 - Jeremy Ney History of American Law HIST169...

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Jeremy Ney History of American Law – HIST169 Mary Frances Berry April 9, 2011 Has the Bill of Rights been utilized to insure a proper balance between liberty and security, in the administration of criminal justice and the protection of civil liberties? Discuss the changing social context, significant controversies and their resolution. “Those who would sacrifice Liberty for Security deserve neither.” This quote by Benjamin Franklin sums up the difficult balancing act that the American government has had to play since the country’s founding. On one hand, the First Amendment and Fourth Amendment specifically enumerate the freedom of individuals to protest their country and to secure themselves against unreasonable breaches of right. On the other hand, the government must actively protect itself and the people from threats that would undermine those very liberties. While civil liberties are constantly in danger, rights of criminal justice have simultaneously been encroached upon. The Supreme Court has repeatedly examined the states’ police powers, yet repeatedly erred on the side of security. Much of the legislation and Supreme Court precedent is derived from societal trends of fear. Communism, terrorism, and general aversions to certain evils have allowed the government to push greater measures of security even when the Constitution would say otherwise as exemplified in Olmstead and Weeks . Therefore, the American government has too often curbed civil liberties and fundamental rights in cases of criminal justice in the name of security. The government and Supreme Court have limited the First Amendment in order to protect the people, when, in fact, such regulations hurt Americans. The Alien and Sedition Acts of 1798 first forced America to struggle with this complex relationship. Federalist John Adams 1
passed this law to prevent seditious attacks against the government that would weaken the country in a time of war. The Alien and Sedition Acts made it illegal to “write, print, utter, or publish… any false, scandalous and malicious writing or writings against the government of the United States.” The First Amendment, however, gives people “the freedom of speech, or of the press.” 1 Anti-Federalists objected to the fact that they were unable to voice their opinions. The Federalists asserted that this legislation would bolster the government and protect the people during a time when relations with France had become even more belligerent. More than120 years later, the Supreme Court faced another issue of checks on speech and upheld these constitutional restraints. In Schenck v. United States [249 U.S. 47 (1919)], the Supreme Court utilized the “clear and present danger” test to convict Charles Schenck, member of the Socialist Party of America, of raising insubordination throughout America by distributing revolutionary material during a time of war. Justice Holmes believed Schenck was undermining the draft and efforts by soldiers in WWI. Holmes likened the distribution of Schenck’s pamphlets

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