Episode Analysis

Episode I: Historical Context

 In 1785, Maryland and Virginia differed on the matter of rights of navigation on the Potomac River and Chesapeake Bay. A meeting on the question led to a general discussion of interstate commerce. As a result, the Virginia legislature called for a convention of all the states at Annapolis on September 11, 1786. However, only five states participated, and the convention decided that such questions could not be effectively dealt with unless the inadequacies of the Articles of Confederation were addressed. It was proposed, and the recommendation was adopted by Congress, that a convention be held eight months later in Philadelphia, Pennsylvania.

In the summer of 1787, representatives from the 13 new states of the United States got together in Philadelphia. The point was to review the Articles of Confederation, which had governed the 13 colonies since its inception in 1777, and its 1781 ratification. Under the Articles, the states remained independent and separate sovereignties. They were a notoriously weak set of ideas for central governance that established a government unable to manage interstate commerce, protect federal borders, levy taxes, and defend against insurrections. One seminal question arose from the inadequacies of the Articles of Confederation: was the newly founded America merely a collection of states, or one united union?

The 55 delegates that convened in Philadelphia, later known as our Founding Fathers, did more than just review the Articles of Confederation – they completely ripped it apart. The Founding Fathers proposed a new constitution for the United States. That said, the proposed Constitution left significant gaps and shortcomings in our ideals as a country, failing to ensure total equality for women, men without property, all people of color, and tragically ignoring the question of slavery. The document was not perfect. But significantly, the later introduction of the Bill of Rights and the amendment process allowed the Constitution to be a living, breathing document, capable of correcting its inherent wrongs as the country developed and grew.

One of the things it did not specifically address, however, was individual rights. While it said what the government could do, it didn't specifically say what the government could not. And of course, it appears that it only truly applied to male citizens who owned property. The silence on individual rights became an obstacle to the ratification of the Constitution. It would take several years of significant debate within state houses before the final ratification of the Constitution.

Two groups, Federalists, and Anti-Federalists, rose to the occasion to publish and discuss the Constitution in the public square. They debated its ratification, in the absence of the Bill of Rights. In essence, the new citizens of the United States demanded strong guarantees that they had not just cast off the tyranny of a despot king for the tyranny of a strong central government. The Bill of Rights was written to mollify these fears. And it is that Constitution, with its Bill of Rights, that naval officers pledge allegiance to.

KEY TERMS

Articles of Confederation

Constitutional Convention

Federalist Papers

Bill of Rights

Uniform Code of Military Justice

TAKEWAYS

• The Articles of Confederation had its flaws, and established a collection of states rather than one united union.
• Even its 1781 ratification faced opposition from states fearful of an overly powerful central government.
• 1785 Washington convenes at Mount Vernon, then in Annapolis in 1786. Five states attended, issue call for Philadelphia.
• Philadelphia 1787 - Purpose to amend Article of Confederation
• Madison kept notes, and that way people know what happened
• Shay’s Rebellion proximate cause for a new system to develop - final trigger for Constitutional Convention 1787
• Lessons learned from Antiquity – the Enlightenment, among other ideas provides good philosophical discussion on what the government needed: Hobbes and Locke, et al.

REVIEW QUESTIONS

• Why was the Bill of Rights even created?
• Why was it written after the Constitution?
• What made the creation of a Bill of Rights indispensable to the Constitution’s ratification?
• What role did the institution of slavery play?
• What is the relevance of the Bill of Rights to Naval Officers?
• Why does the Oath of Office matter?
• Where does the Uniform Code of Military Justice fit relative to the Bill of Rights?

Episode II: Freedom of Expression

Peter Zenger was born in 1697, in an area of western Germany. His father was a school teacher. The Zenger family immigrated to New York in 1710. By 1733, Zenger had become a printer in New York. He printed copies of newspapers to voice his disagreement with the actions of the newly appointed colonial governor William Cosby. On his arrival in New York City, Cosby had plunged into a rancorous quarrel with the council of the colony over salary. Supported by members of the Popular Party, Zenger's New-York Weekly Journal continued to publish articles critical of the royal governor. Finally, Cosby issued a proclamation condemning the newspaper. Zenger was charged with libel and imprisoned. After more than eight months in prison, Zenger went to trial. For its time, the case was now a cause célèbre, with public interest at fever-pitch. Zenger's lawyer pleaded his client's case directly to the jury. After the lawyers for both sides finished their arguments, the jury retired, only to return in ten minutes with a verdict of not guilty.

With this case, a precedent was established in the Colonies that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America. This case is considered as one of the groundwork principles of freedom of the press. During World War II the Liberty ship SS Peter Zenger was named in his honor

AMENDMENTS COVERED

• 1^st Amendment

CASE LAW

• Debs v. the United States
• Tinker v. Des Moines
• Cohen v. California
• Citizens United v. FEC

TAKEWAYS

• Freedom of speech is considered a fundamentally sacred value by all American citizens, and one that is touted regularly in the public square.
• US has most permissive speech principles in world due to the Constitution
• But freedom of speech, along with petition, assembly, and press, has limitations
  • Limit: “Fire” in a crowded room; Inciting violence;
• Press had a wider impact than individual speech; co-equal in terms of law, but press greater priority to the Founders
• The key to understanding the 1st Amendment of the United States is to understand the government does NOT have the right to restrict an individual’s ability to expression and speech
• A private company, however, is a vastly different situation
  • How does the First Amendment apply to social media?
  • We understand the Digital Age to opens new doors and questions
• Impact of the UCMJ on Freedom of Expression for Service Members
  • Huge difference: religion, expression, assembly, all abridged when you raise your right hand.
• Article 88 prevents personally contemptuous language
• As naval officers, we understand we have certain rights that must be abridged
  • We lose some of the guarantees provided in the 1st Amendment, we gain different rights private citizens do not.

REVIEW QUESTIONS

• How are we to understand these freedoms both as citizens, and naval officers?
• What limitations exist to those guaranteed rights?
• Why is okay to burn a flag or wear black armbands protesting war in public school?
• When does the government have the right to infringe upon some of those rights?
• Is the Press any different than Individual Speech?
• How are we supposed to understand freedom of expression in the digital age of Instagram and Facebook?
• Can a private institution limit my speech?

Episode III: Freedom of Religion

On June 4, 1768, five Baptists were arrested and charged with being "disturbers of the peace, guilty of ramming a text of scripture down the throat of every man they meet upon the road". They were tried a month later, sentenced, and marched off to the old stone jail. Most of them remained in jail until September 5, 1768, when they were released.

At the same time in the state of Virginia, the Anglican Church was the state church. Anglican clergy were employed by the government and acted as teachers, becoming officials of the state. In his years as a young Virginia legislator, James Madison became keenly interested in the efforts of Baptist preachers who were arrested for not having an Anglican license.

The James Madison we know and revere today as one of the country’s Founding Fathers and key figures in establishing and ratifying the Constitution 1791, had an intense change of heart, and would find pre-Revolution Virginia’s Anglican State religion foreign to the United States. Madison, like many in this country after victory over Great Britain, championed above all else Life, Liberty, and the Pursuit of Happiness. The tyrannies of King George III convinced the Founding Fathers that an individual’s rights and liberties were sacred, and not to be infringed upon by the government. By the time of the 1787 Constitutional Convention, and throughout the ratification process with the introduction of the Bill of Rights, Madison and the Founding Fathers viewed an established state religion as a denial of a citizen’s right to exercise his or her own freedom of conscience. To James Madison, the idea of religion goes much deeper than how one does or doesn’t practice. He called conscience “the most sacred of all property,” and, like a good scholar of John Locke, Madison felt strongly that one’s property was a natural right.

AMENDMENTS COVERED

• 1^st Amendment

KEY TERMS

• Establishment Clause
• Free Exercise

CASE LAW

• Lemon v. Kurtzman
• McCreary County v. American Civil Liberties Union
• Van Orden v. Perry
• Masterpiece Cakeshop v. Colorado Civil Rights Commission
• Goldman v. Weinberger

TAKEWAYS

• Biggest concern: King of England as the Head of Church
• Washington and many Founders were Deist
• The “Lemon Test, a three-pronged system enacted by the federal government following the case Lemon vs. Kurtzman
• The issue of the Establishment Clause appears easier to understand on the surface regarding the U.S. military.
  • federal government cannot establish a religion, neither can the military.
• The decision to abridge, or prohibit, a service member’s ability to free exercise is a big decision to make
• Dictated by military’s needs for mission accomplishment - Facial Hair - Shaving is regarded less liberally for mission readiness - Face seal in a O2 mask, for instance.
• USNA noon prayer stands as an invitation, not coercion - military prayer, either at the Naval Academy or aboard a ship, as an invitation, and not coercive in nature, thereby not violating the Establishment Clause

REVIEW QUESTIONS

• What factors led the United States to embrace these concepts?
• Have we ever been a truly secular nation?
• What is the difference between “Establishment” and “Free Exercise”?
• Does the state ever have the right to “prohibit” or prevent an individual’s personal religious practice?
• How has the relationship between government and religion changed over time?
• How are we to understand freedom of religion as members of the military?
  

Episode IV: Understanding the 4^th Amendment: Search, Seizure, and Admissibility

On September 24 1766, in Colonial Era Boston, Massachusetts, customs officials searched merchant Daniel Malcom's home, which was also his place of business. They claimed the authority to do so by a writ of assistance issued to the customs official based on information of a confidential informant. Malcom allowed them to search, but denied them access to a locked cellar, arguing that they did not have the legal authority to break it open.

The officials left and returned with a specific search warrant, only to find that Malcom had locked his house. A crowd supportive of Malcom had gathered around the house. No violence occurred, but reports written by officials created the impression back in Britain that a riot had occurred.

The incident of Daniel Malcom furthered Boston's reputation in Britain as a lawless town controlled by "mobs", a reputation that would contribute to the government's decision to send troops in 1768. This was one of several incidents when a Boston merchant resisted a search with a seemingly exact knowledge of the law; John Hancock would act in a similar manner when customs officials attempted to search his ship Lydia in 1768.

AMENDMENTS COVERED

• 4^th Amendment

KEY TERMS

• Privacy
• Search
• Probable Cause
• Inspection

TAKEWAYS

• The Right to Privacy – the Implicit Bedrock Guiding the 4th Amendment
• Privacy is protection from unreasonable search and seizure - not articulated in the Constitution, but the Court has read in the rights. - abortion, birth control
• The foundation of privacy, both in 1791 and today in the digital age, revolves around the premise that you, as a citizen, possess a reasonable expectation to privacy in your home, your possessions, and your communication with others.
• Courts can find probable cause when there is a reasonable basis for believing that a crime may have been committed or when evidence of the crime is present in the place to be searched.
• Military members who are housed in dorms, barracks, or deployed are subject to Inspection. Commanders have wide latitude to order that those places be inspected to ensure unit readiness and good order and discipline.

REVIEW QUESTIONS

• Where does the idea of Privacy come from in American jurisprudence, and the US Constitution?
• What is Probable Cause?
• What is the difference between a search and an inspection?

Episode V: Criminal Self-Incrimination

On March 5, 1770, Private Hugh White, a British soldier, guarded a safe of British gold on King Street in Boston, MA. Tensions in Boston were already running high, as the newly imposed Stamp Act and Townshend Act exacerbated relations between the British Royal Government and the Colonists. As Private White grew increasingly nervous from a growing crowd of angry Bostonians, he called for reinforcements. More British soldiers arrived, and the crowd of colonists began to throw rocks and snowballs at the royal soldiers. Nobody knows for certain who fired the first shot, but the outcome was tragic: a deadly riot that resulted in the death of five colonists, wounding six more. The events are commonly known as the Boston Massacre, and played a pivotal role in fueling anti-British sentiment throughout the 13 Colonies. Within hours Private White and seven of his comrades were arrested and jailed.

After Private White and his comrades were jailed, John Adams made the courageous decision to defend the British soldiers in trial. The British soldiers were being tried for 1st Degree Murder, and faced the death penalty. Adams’ actions in trial showed that reasonable doubt existed. Both the soldiers and eye-witnesses stated the soldiers acted in self-defense and amidst the confusion, it was impossible to premeditate the killings. All of the soldiers were acquitted of the original charges.

John Adams’ actions, an unpopular choice to defend the British soldiers, established the precedent of Due Process in American law that shapes our legal system today. Every person would be guaranteed the right to counsel, a fair trial by jury, and the right to defend themselves in a court of law. John Adams took the moral high road, and as a result, paved the way for the introduction of the Due Process Clause and the observation of all criminal rights enshrined in the Bill of Rights:

Note: “A Few Good Men” – perfect example of a witness (Colonel Nathan Jessup [Jack Nicholson]) giving up his 5^th Amendment rights.

AMENDMENTS COVERED

• 5^th Amendment
• 6^th Amendment

KEY TERMS

• Due Process
• Self-incrimination

CASE LAW

• Miranda v. Arizona

TAKEWAYS

• The importance of the Due Process Clause cannot be understated.
• The 5th Amendment ensures five key rights: the Right to a Grand jury, the Right against Double Jeopardy, the Right to Just Compensation, and the Right Against Self-Incrimination and Due Process.
  • Due Process ensures that all the others are protected.
• Right to not incriminate oneself - Fundamental violation of dignity as a human being.
  • The State is required to assemble evidence without a confession
• Development of “Miranda Warning”
  • Miranda: Psychological pressure, coercion, determines how confession can be used as evidence
  • Miranda Rights are not a part of the Bill of Rights. Rather, they serve as the immediate stepping stone to an accused individual in police custody. More specifically, they detail rights guaranteed in the 5th and 6th Amendment, and ensure that all accused individuals are aware of these rights.
• UCMJ 31B: Earlier than Miranda, 1951. Must define what a service member is accused of.
  • Key difference: Only law enforcement can give warning under Miranda; under 31B, supervisor must give warning
    • 31B does not address right to counsel
    • 31B requires nature of offense to be told
  • Government cannot deprive an individual of privacy, property, unless it can establish that the person violated laws that warrant loss of rights and property. Meant to prevent abuse of power by government on citizens

REVIEW QUESTIONS

• But what really are our Miranda Rights?
• Where do they come from?
• What happens when an individual is taken into police custody?
• What is 31 Bravo, and how is it different than Miranda?

Episode VI: Judicial Procedure

We pick up right where we left off last episode. Let us assume you have been taken into police custody, and lawfully read your Miranda Rights.

AMENDMENTS COVERED

• 5^th Amendment
• 6^th Amendment
• 7^th Amendment
• 8^th Amendment

KEY TERMS

• Due Process (again)

CASE LAW

• Gideon v. Wainwright

TAKEWAYS

• Precedent stems from Boston Massacre and John Adams’ decision to defend the five British soldiers
• The right to counsel is guaranteed under the 6^th
• Right to Counsel protects against individual speech concerns: stammer, poor command of English, etc.
• Bail is meant to ensure individual shows up in court, or protect public from someone considered dangerous
• A Grand Jury (vs a petit jury) Group of people convened by prosecutor to hear evidence to determine if an indictment is necessary
  • Convened in secret – meant to check the power of a prosecutor, hold them accountable - voice of the community
• Right to a Speedy - Prevent indefinite incarceration
• The importance of public trials
  • Public accountability, community and observers can ensure veracity of process
  • “Sunlight is best disinfectant”
• Civilian juries (peers) unique to American judicial system
• In the Military (at the USNA)
  • Commandant has Special Court Martial Convening Authority
  • Superintendent has General Court Martial Convening Authority
  • Commandant and Superintendent have choice to use Brigade Conduct System or the UCMJ
• 8^th Amendment protecting against Cruel and Unusual Punishment:
  • Degrading to human dignity
  • Severe and arbitrary
  • Serve all of society would say it is not right
  • Severe and patently unnecessary
• Significance of “And”
  • Suggests that it may be cruel, but not unusual if many states use a specific practice

REVIEW QUESTIONS

What does the right to an attorney or counsel mean?

what is the historical precedent?

What is the purpose of bail?

What is a grand jury?

What is the right to a Speedy Trial and the importance of public trials?

What does the right to a trial by jury mean, and why is it so important to our legal landscape?

What is the relationship between the UCMJ and the Brigade Conduct System?

What does cruel and unusual mean?

Episode VII: Unfinished Experiment

The year is 1957, and the Deep South struggles to embrace and enforce the court’s ruling in the case of Brown v. The Board of Education – The Supreme Court’s 1954 decision that ruled state laws establishing racial segregation in schools was unconstitutional. After seeing Southern states drag their feet in enforcing this landmark ruling, the Supreme Court demanded integration to occur “with all deliberate speed.” In the summer of 1957 the school board of Little Rock, Arkansas voted to desegregate their high schools. But Orval Faubus, the Governor of Arkansas and an outspoken segregationist, ordered Arkansas’s state national guard to surround the high school and prevent aspiring black students from attending, or even entering, Little Rock High School.

Faubus’ orders were followed to a draconian effect. From September 4, 1957 – September 23, 1957, the Arkansas State National Guard, accompanied by a belligerent crowd of protestors and rioters, physically barred entry to nine Black students, eventually known as the Little Rock Nine. On September 23, President Eisenhower issued an executive order placing the Arkansas State National Guard under federal authority, and the United States Army sent over 1,000 troops from the 101st Airborne to Little Rock. On September 25, 1957, the 101st Airborne stymied the belligerent mobs, enforced the Supreme Court’s ruling on integration, and provided protection for the Little Rock Nine for the remainder of the school year, including patrolling the hallways of the High School.

The Little Rock Nine, rightfully so, are considered American heroes. But President Eisenhower’s decision to federalize the Guard and send in the 101st Airborne was not without controversy. Question’s like states’ rights, the power of the central government, and the concept of Federalism all came to fore. To be blunt, President Eisenhower was not a natural Civil Rights activist – however, in the midst of the Cold War and an ever-watchful foe in the Soviet Union, President Eisenhower felt compelled to demonstrate federal strength and solidity. The first portion of the episode revolves around Amendments 9 and 10, as we seek to understand Enumerated Rights, and the relationship between states’ rights and federalism. In the second part of the lesson, we focus on the 14th Amendment: what it means, its effect on civil rights, and the impact it had on the original Bill of Rights.

AMENDMENTS COVERED

• 9^th Amendment
• 10^th Amendment
• 14^th Amendment

KEY TERMS

States’ Rights and Federalism

Enumerated Rights

Elasticity Clause, Necessary and Proper

Due Process

Equal Protection

CASE LAW

McCulloch v. Maryland

TAKEWAYS

• The purpose of the 9^th Amendment
  • Differences between enumerated and unenumerated rights.
• Whatever is not enumerated, the States have the right to decide
  • The United States “are” vs the United States “is”
  • States’ Rights and Federalism
• Founders give themselves wiggle room if not explicitly mentioned
  • Elasticity Clause, Necessary and Proper 
• it remains a deliberate addition by the Founders to ensure the Bill of Rights would not be the end-all-be-all of rights guaranteed to American citizens.
• The Tenth Amendment confirms that powers not granted to the United States were reserved to the States or to the people.
  • But it allowed States to commit abuses and deny rights to citizens.
• 14^th Amendment, and its impact civil rights, and the first ten amendments. Adopted in 1868
  • Forced states to comply with Due Process and Equal Protection of the Law for former slaves
  • Private action (discrimination) made illegal in the Civil Rights Acts.
• The US military has historically been in the vanguard of civil rights integration
  • 54^th Massachusetts, Buffalo Soldiers, Tuskegee Airmen, Navajo Code Talkers, Women Air Force Service Pilots.

REVIEW QUESTIONS

• What is the purpose of the 9^th Amendment and what did the Founders attempt to achieve with its inclusion?
• What are Enumerated Rights?
• How are we to understand the balance between states’ rights and federalism?
• When does it become “Necessary and Proper” for the federal government to intervene?
• What impact did the 14^th Amendment have on the country, the law, and the Bill of Rights specifically?
• What has changed between 1791 and today? How has the understanding of the Bill of Rights changed? What would the Founders find surprising?

Episode VIII: Standing Armies

Moses Sash enlisted as a private in Continental Army in August 1777, serving in the 7th Massachusetts regiment around West Point, New York. Sash was a farmer and laborer in civilian life, was 5'8" and listed as an African American (Negro). When the war ended, Sash was discharged and returned to his home in western Massachusetts.

On September 2, 1786, a large group of men, mostly Revolutionary War veterans assembled at local court houses, armed with guns, swords, and with drums beating and fifes playing. Shay’s Rebellion, named for Daniel Shays, a former Continental Army captain was one of the first major treats to the Articles of Confederation. The Massachusetts Governor called for his militia to quell the revolt and to prevent and suppress all such violent and riotous proceedings. Sash had joined the protests. He was part of the pell-mell retreat following their failed attempt to capture the United States Arsenal at Springfield, Massachusetts.

When learning of the rebellion, Washington remarked that it threatened “the tranquility of the Union.” At that time, Washington was leaning against attending the Constitutional Convention, but the impact of Shays’ rebellion and the influence of his friends led Washington to change his mind.

AMENDMENTS COVERED

• 2^nd Amendment
• 3^rd Amendment

KEY TERMS

• Tyranny of the Federal Government
• Well-regulated militia
• Selective Incorporation
• Constitution is a Living Document

CASE LAW

• United States v. Cruikshank
• Engblom v. Carey
• District of Columbia v. Heller
• McDonald v. City of Chicago
• New York State Rifle & Pistol Association Inc. v. City of New York

TAKEWAYS

• Shay’s Rebellion was a revolt of farmers in Western Massachusetts who wanted pensions from Revolutionary War
  • Put down by Massachusetts State militia
  • Articles of Confederation could only ask, not compel. Thus, no money for federal army
• Well-regulated militia vs. individual gun ownership
• Tyranny of the new Federal Government - Colonial Boston - It was a big issue.
• Life on the Frontier was unpredictable
• The wide range of Founding-era laws suggests that the Founders understood gun rights quite differently from many people today
• The Second Amendment was about ensuring public safety, and nothing in its language was thought to prevent what would be seen today as quite burdensome forms of regulation
• District of Columbia v. Heller - Can the District of Columbia pass a law banning gun ownership in the home? Landmark decision
• McDonald v. City of Chicago - The decision was based on the principle of "selective incorporation" of the Fourteenth Amendment
• New York State Rifle & Pistol Association Inc. v. City of New York - How can the new court change the interpretation? Many people have suggested that the constitution is a living document.
• The Uniform Code of Military Justice interact and its effect on your rights as gunowners?

REVIEW QUESTIONS

• What impact did Shay’s Rebellion have on the Articles of Confederation?
• What was the problem with Standing Armies?
• How does the 3rd Amendment address Standing Armies?
• How did the 3rd Amendment inform the 2nd Amendment?
• What are the colonial origins and interpretations of the Right to Keep and Bear Arms?
• What were intentions of the Founders, and how and when they were changed?
• How has the Supreme Court interpreted this right today?
• Was it about individual rights (for self-protection, to hunt game), or was it a collective obligation, to keep you weapon ready to join the well-regulated militia in order to protect the state from the Federal government?
• Does the Uniform Code of Military Justice interact with the Second Amendment, and is there any language or consequences in the UCMJ that might affect your rights as gunowners?